2010 H-1B Cap Season Is Underway – Contact Us Now

About the H-1B Visa and the Annual H-1B Cap

The H-1B visa is one of the most commonly used U.S. work visas for highly skilled foreign born workers in fields such as information technology, engineering, research, academia, and others.  The H-1B visa is both highly desirable and, unfortunately, in short supply.

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  An H-1B job must require a bachelor’s degree or equivalent and the foreign national must have a bachelor’s degree or equivalent in a field of study that is related to the job.   Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the 2010 Fiscal Year starting on October 1, 2009.  As part of the Visa Reform Act which went into effect as of May 5, 2005, an extra 20,000 H-1B visas were made available to foreign nationals graduating with a US Master’s or higher degree from a US institution. These 20,000 are counted in addition to the annual cap of 65,000 visas.

Who is Counted Towards the Cap?

Most H-1B applications are subject to the annual cap.   Generally, all H-1B petitions which are filed for a new employment of an H-1B beneficiary (whether the foreign national is current outside of the U.S. or in the U.S. on a different visa type) and where the beneficiary has never held an H-1B visa in the past six years are subject to the cap.

However, some H-1B petitions are cap-exempt. Petitions filed by institutions of higher education or their affiliates or by non-profit or government research organizations are not subject to the H-1B cap (see our Guide to H-1B Cap-Exempt Employers)  Additionally, H-1B petitions where the beneficiary has had H-1B visa approved within the last six years are also exempt - in many cases such cases are H-1B employer transfers or changes in terms of employment.

What is H-1B Season?

All H-1B petitions which are subject to the cap must be filed on April 1 with a starting date of not earlier than October 1.  The demand for H-1B visas over the past several years has far exceeded the available 85,000 H-1B visas and as a result the government has instituted a lottery which randomly determines which H-1B applications submitted on or shortly after April 1 are to be considered.  Because of this limited window of opportunity, H-1B petitions which are subject to the cap must be filed on April 1 or a day or two afterwards.  Petitions filed late are automatically rejected.  As a result, the months of February and March are generally referred to as the “H-1B Cap Season” because this is the only time of the year when H-1B cap cases can be prepared and filed.

Deadline is April 1

The H-1B Season is underway.  We are already receiving many new H-1B cap inquiries and we are starting to get very busy with new H-1B cap applications.  Because cap-subject H-1B applications have only one opportunity to be filed per year, it is very important that each application be properly prepared and timely filed and we take extra effort to do so.  We still accept new cases so please contact us for a free initial consultation and evaluation on your case.  We would be happy to evaluate whether your H-1B petition is subject to the cap and if so, guide you through the process.