USCIS updates count of H-1B petition filings, continues to accept petitions

US Citizenship and Immigration Services (USCIS) announced April 27, 2009, that it has only receive about 45,000 of the 65,000 H-1B non-immigrant visa petitions needed to meet the fiscal year (FY) 2010 cap (beginning October 1, 2009). This represents approximately 3,000 additional filings since USCIS' April 8 announcement and means that new H-1B petitions may still be filed. This is the first time in many years that the cap for H-1B nonimmigrant visa petitions was not hit in the initial five-day filing period. USCIS began accepting petitions on April 1.

The agency has received approximately 20,000 H1-B petitions for aliens eligible for the advanced degree exemption. However, USCIS continues to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

Once the relevant H-1B cap has been met, USCIS will issue an update to advise the public that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date. To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date (this would be done subject to a lottery). USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates on the processing of FY 2010 H-1B petitions.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States
  
• Change the terms of employment for current H-1B workers
  
• Allow current H-1B workers to change employers
  
• Allow current H-1B workers to work concurrently in a second H-1B position
  
• Updates on the cap count can be found on the USCIS' website: http://www.uscis.gov/h-1b_count.
  

H1-B visas are given to US companies seeking to hire nonimmigrant aliens in specialty occupations of distinguished merit and ability when such workers are in limited quantities in the United States. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology and business specialties, etc). The numerical limitation on H-1B petitions for fiscal year 2010 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a US masters' degree or higher are exempt from the fiscal year cap. Holders of these visas can stay in the United States for up to six years.