H1B Cap Cases for FY2010 : Time to Start the Process
Posted Nov 28, 2008
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It is time to start thinking about H1B "cap" filings for Fiscal Year 2010 (FY2010). The U.S. Citizenship and Immigration Services (USCIS) FY starts on October 1st each year. Thus, the USCIS FY2010 starts on October 1, 2009 and runs through September 30, 2010. Following are procedures to help you for the upcoming cap season. Our suggestions are based on existing law, as well as USCIS guidance and our experience at the Murthy Law Firm from prior years. It is possible that the USCIS will issue updated guidance with slight procedural variations for FY2010. However, the timelines permit a cap-subject H1B filing no earlier than April 1, 2009, with a requested start date for the H1B petition no earlier than October 1, 2009. Some common questions surrounding the annual H1B cap are discussed here for the benefit of MurthyDotCom and MurthyBulletin readers.
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Murthy Law Firm has Started Preparing H1B Cap Cases for FY2010
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We at the Murthy Law Firm are accepting H1B cases for FY2010. We have a team of experienced attorneys and paralegals in our nonimmigrant department who are currently working on new H1B cap-subject cases. The cases will be prepared in advance and will be transmitted for delivery on March 31, 2009, to reach the USCIS, ideally, on April 1, 2009. In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H1B case.
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MurthyDotCom and MurthyBulletin readers, both employers and foreign nationals, are urged to seek the services of qualified attorneys for the preparation of their H1B cases. The USCIS has increased scrutiny on H1B cases, particularly those filed in the IT consulting industry. The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H1B cap cases for filing.
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What is the H1B Annual Cap?
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The H1B limit, or "cap," is the number of H1B cases that can be approved each year as "new" H1B filings. The annual limit on H1B cap-subject approvals is 65,000, with a separate allocation of 20,000 cap exemptions for beneficiaries who hold U.S. masters' degrees or higher. (The 65,000 number is effectively reduced by 6800 due to numbers specifically reserved for H1B1 filings for nationals of Chile and Singapore.) Not all H1B filings are subject to the cap, as explained below. The cap primarily is a concern for persons seeking to enter the U.S. for the first time on an H1B: foreign students who have employment offers following graduation and persons present in the U.S. in a status other than H1B who have not previously held H1B status.
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What Cases Are Subject to the Annual Cap?
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Individuals who have never held H1B status before are subject to the cap. They need to have their cases counted against the cap, unless the cases are being filed by a cap-exempt employer. There is more information on cap-exempt employers in our January 12, 2007 MurthyBulletin article, FAQs on H1B Quota and Cap Exemption. It also may be helpful to review the forms that are used to determine exemptions.
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USCIS uses the information in Part C of the H1B Data Collection and Filing Fee Exemption Supplement (PDF 1.75MB) (Form I-129, page 11) to determine if a petition is subject to the cap. If "yes" can be checked for any of questions 1-4, then the case should be cap exempt. The case also, generally, would be cap exempt if the response to question 5 is yes, unless the answer to question 6 is also yes. Cap exemption questions can be complex. Thus, it is necessary to have an experienced, knowledgeable immigration lawyer to analyze the situation.
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Individuals who have previously held H1B status generally would not be subject to the cap, even if they have held some interim status, such as F-1 or H-4. This would not be the case if their prior H1B approval/s were cap exempt, however.
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When Can H1B Cap Petitions Be Filed?
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The USCIS permits H1B cases to be filed by more than one potential employer on behalf of a single foreign national. However, as explicated for the first time in new regulations codifying USCIS' long held policy, it is not permissible to have a single employer file multiple H1B petitions for the same beneficiary in an effort to increase one's chances in the lottery.
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H1B petitions filed by cap-exempt employers may be filed at any time during the fiscal year, depending only on the needs of the employer and the availability of the potential employee.
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Do I Need to File Cap Petitions on April 1st?
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As long-time MurthyDotCom and MurthyBulletin readers are aware, the annual cap for FY2008 was exceeded on the first day of filing. A random lottery was held, consisting of cases filed on the first two days, as required by regulation. In a response to this situation, the procedures changed for FY2009, as the USCIS decided that there would be a lottery of the cases filed on the first five days of filing, if the cap was reached during any of those five days. See our April 4, 2008 MurthyBulletin article, FY2009 H1B Cap Filing Procedures and Update on Reentry Permits, available on MurthyDotCom. The cap, in fact, was met during the first five days. More detail on the volume of cases, both in the regular cap and the advanced-degree cap, can be found in a series of updates that appeared on MurthyDotCom between April 8, 2008 and April 14, 2008.
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The lesson that should be clear from the past two years is that it is best to file cap-subject H1B cases on April 1st. While there may be a slightly larger window, depending upon any procedural announcements for FY2010, there is no reason to tempt fate when so much is at stake.
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What is the USCIS Premium Processing Service?
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By filing Form I-907 and paying a fee of $1,000, an employer may request to have certain petitions, including H1B petitions, reviewed within 15 calendar days of filing. This fee is in addition to the normal H1B filing fees that must be paid.
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Premium processing can greatly assist in obtaining a prompt decision in a H1B petition. However, it does not increase one's chance of acceptance in any lottery of cap-subject filings. It also does not permit a start date of employment for cap-subject cases of any earlier than October 1, 2009.
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Are Multiple Filings Allowed?
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The USCIS permits H1B cases to be filed by more than one potential employer on behalf of a single foreign national. However, it was not permissible in the past to have a single employer file multiple H1B petitions for the same beneficiary in an effort to increase one's chances in the lottery. It is expected that these same rules will apply for the upcoming cap season.
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Conclusion
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We at the Murthy Law Firm know that the H1B cap season can be difficult and stressful for employers seeking to employ H1B workers and certainly for foreign nationals who need H1B status to live and work legally in the United States. It is possible that, due to the economy, the number of H1B filings may be fewer than in recent years, but one must be prepared for the H1B cap to be met at the beginning of the filing date. As in the past, we will continue to keep our readers informed of the current status of things via articles in the MurthyBulletin, NewsFlashes also sent to our subscribers, and immediate advisories posted on MurthyDotCom. We are always here to provide useful and up-to-date information on USCIS guidance, policy, and other announcements pertaining to the H1B cap for FY2010, to help you through this difficult process.