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H1B Visa Lawyer – Cap update as of May 11, 2010

As of May 11, 2010, approximately 18,000 H-1B cap-subject petitions were filed. Additionally, USCIS has received 7,600 H-1B petitions for aliens with advanced degrees. Still fewer visas than expected, sign of the times. We expect filings to pick after the May graduations and into the summer.

So what is this H1B Cap all about?

The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status each fiscal year (FY). The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institution may be exempt from the cap. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

Under AC21 and other legislation passed by Congress, there are certain types of employers and alien workers that are “exempt” from the H-1B cap.

1. H-1B beneficiaries, who had worked as H-1B employees within the past six years, were counted against the H-1B quota and currently remain valid non-immigrant status (such as F, H, and etc.), will not be subject to the current H-1B cap;
2. H-1B beneficiaries sponsored by institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from H-1B Cap;
3. H-1B physicians who have received a J-1 Conrad 20 waiver of the 2-year home residency requirement based on work in a health professional shortage area are also exempt from H-1B cap.

For the Aliens currently in H-1B status, the newly filed petitions are not subject to H-1B cap in the following four situations:
1) Amended Petitions: If a “material change” has occurred in the terms and conditions of the employment of the alien employee (H-1B beneficiaries), the employer is required to file an “amended” petition. This type of petition is not subject to the H-1B cap.

2) Extension Petitions: If the H-1B beneficiary’s current status is about to expire and needs an extension for additional time, typically for another 3 years, the employer must file an H-1B “extension” petition. Like amended petitions, extension petitions are not subject to the H-1B cap.

3) Concurrent Employment: If the H-1B worker wants to work for Employer B while also working for Employer A that is subject to the cap or the alien has been subject to the cap in the past six years, Employer B files a “concurrent” H-1B petition on his or her behalf. This type of H-1B petition is not subject to the cap.

4) Sequential Petitions: If the alien work had been subject to the cap in the past six years and wants to quit his/her job with Employer A and start his/her employment with Employer B, AC 21 portability rule can allow the alien worker to transfer his or her employment to the new employer prior to the approval of the petition by USCIS. Like the petitions above, sequential petitions are not subject to the cap either.

Will the pace of filing increase, we think so. A sluggish economy and many available American workers who were laid off are probably the culprit for the low usage of H1B visas so far.