Investigations and Sluggish Economy Slow FY2010 H1B Filings
Posted Aug 28, 2009
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The substantial reduction in the number of filings for H1B petitions has generated questions from some H1B-cap watchers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year (FY) 2010. The answer to this is no. Cap-subject H1B petitions can be filed for the full FY, or until the numbers are all used. As of this writing, cap numbers remain available and overall usage remains light.
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Cap Numbers Still Available
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As indicated in our August 19, 2009 update on the H1B cap, approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap. A complete tracking of the H1B cap counts for the FY2010 filings is available on MurthyDotCom. We will continue to provide updated cap counts until the cap is reached or the end of the FY.
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Experiences from Previous Years
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The H1B cap became a significant issue in FY2004. As explained in our September 12, 2003 article, H1B Cap for Fiscal Year 2004, the cap decreased significantly in FY2004. As our NewsFlash! The H1B Cap Has Been Reached at the time indicated, the regular H1B cap for FY2004 was not reached until February 17, 2004. This meant that employers were able to file for H1B petitions under the FY2004 cap from April 1, 2003 until February 17, 2004, a period of more than ten months. Over the next years, the cap was reached earlier each year. In FY2005, it was reached on October 1, 2004. In FY2006, it was reached on August 10, 2005, and in FY2007, the regular cap was met on May 26, 2006.
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The cap limits continued to be a problem in FY2008 and FY2009. In those years, the regular cap was exceeded during the initial filing period. Cap numbers were allocated based on a lottery system.
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Closing Date for FY2010
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The rate of filings for FY2010 is far different from that of the past couple of years. Thus, as of this writing, there are sufficient H1B cap numbers available. Also playing into the availability of cap numbers is the increased scrutiny of H1B petitions, particularly those filed by IT consulting companies. This has resulted in higher rates of denials and a general chilling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of the FY2010 which will be September 30, 2010.
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Conclusion
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The already slow economy may be held back further from recovery if the government overreaches as it focuses on violations. While enforcement of laws and tracking violators are important, employers should not be discouraged from filing proper H1B petitions for needed workers. In the long run, this has an adverse impact. In order to exhaust the regular H1B cap for FY2010, employers will have to file H1B petitions at a much higher rate. If the numbers hold out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the real-world needs of employers. Most companies cannot wait for several months for temporary workers to begin employment in H1B status, and cannot predict their needs months in advance. The rates of filings, however, are ultimately tied to the economy and the needs of U.S. employers. We at the Murthy Law Firm continue to accept new H1B filings for FY2010, and will do so as long as cap numbers remain available. Our attorneys are also available to advise U.S. employers on all of their questions regarding the H1B category.