Please note that April 1, 2010 is the first day that an employer can file a petition with USCIS to capture a Fiscal Year 2011 (starting October 1, 2010) H-1B visa number. Those who have never held an H-1B must apply under the annual H-1B cap. Last year, all new H-1B’s visas for degreed positions were available until December 2009. However, the preceding three years when the economy was growing, the H-1B cap’s annual numbers were exhausted during the first week of filing. To be safe, we strongly recommend filing on or about April 1, 2010 in the event there is a rush for H-1B’s visas again this year. 

If the H-1B annual cap is reached on the first day of filing, similar to past years, we assume USCIS will institute a random lottery to determine whether an application can continue for adjudication on its merits. In prior years, there was approximately a 30% chance of rejection at the lottery stage.  Note, with the unprecedented economic situation, H-1B cap filings may be down again this year and it may be your company’s best opportunity to obtain a “new” cap subject H-1B. Those applications selected for processing after the lottery will be adjudicated sometime during the late summer of 2010 (August - September). 

Generally, capturing an H-1B visa cap number for October 1, 2010 is critical for those who are NOT in H-1B status already (i.e. students in F-1 OPT or CPT, J-1’s, TN NAFTA workers, new H-1B’s waiting overseas, and those working in the US in L status, etc.). Current H-1B visas holders transferring to and from private companies need not be concerned about the annual H-1B visa numbers as they have already secured a cap subject H-1B number. 

Should you have any questions or require assistance, please contact our office immediately.