New H1B Cap Filings Allowed under USCIS FY10 Quota
Posted Oct 09, 2009
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It has been several years since the USCIS fiscal year has begun without the H1B cap first having been met. As of this writing, there are still H1B cap numbers available, both in the advanced-degree and regular H1B quotas. This means that H1B petitions can still be filed for fiscal year 2010 (FY10). These filings can continue, as long as the cap numbers are available. Some of the confusion surrounding this matter is addressed here for MurthyDotCom and MurthyBulletin readers.
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Misconceptions Regarding FY10 H1B Cap Filings
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Incorrect assumptions and misunderstandings about the FY10 H1B cap abound. The Murthy Law Firm receives questions from many individuals who wrongly assume that all FY10 H1B petitions had to be filed by September 30, 2009, before the FY began. This is not the case. H1B petitions can be filed throughout FY10, until the cap numbers are all depleted. It is really simple now that FY10 has begun and the H1B cap numbers have not been exhausted.
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Start Date for FY10 New H1B Filings Can be from October 1, 2009
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The issue of the start date for H1B employment that can be requested in any new H1B petition is also simple at this point. For any petition filed under the FY10 cap on or after October 1, 2009, the start date of work requested can be immediate. Since October 1, 2009 is the start of the new FY, and the H1B numbers are still available, filings may request an immediate validity date. The start date for H1B work can be as much as six months in the future, depending upon the needs of an employer. This future start date is an option, not a requirement, once the FY begins.
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For the past several years, the reason that cap-subject cases have had to request future start dates is that the cases were being filed before the FY began. That is, since H1B petitions can be filed six months in advance of the requested start of employment, employers were all doing so in order to increase their chances of obtaining one of the limited cap numbers. Thus, cases were filed at the beginning of April, requesting an October 1st start date. Since we are now beyond October 1st, and cap numbers remain available, it is possible to pick a more desirable start date, ranging from immediate to six months in the future.
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USCIS Update on H1B-Cap Cases as of September 25, 2009
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We at the Murthy Law Firm continue to provide our readers with updates on the H1B cap. The movement of the cap continues to be slow. The advanced-degree cap remains unchanged, with 20,000 cases received, but the USCIS is still accepting advanced-degree cases. The regular cap increased by 1600 cases between the end of August and the end of September, for a total of 46,700 as of September 25, 2009. This reflects a higher rate of filings than in the prior few months. The increase may be the result of some re-filings of cases that were denied earlier, or of more employers filing cases, since the start date for work now can be immediate. This is more in keeping with the business needs of most employers.
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Conclusion
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Employers in need of H1B workers can continue to file H1B petitions for FY10 until the end of FY10 or until the cap is reached, whichever occurs first. FY10 ends September 30, 2010. We will continue to update MurthyDotCom and MurthyBulletin readers on the H1B cap counts as they are issued.