USCIS Updates Fiscal Year 2011 H-1B Cap as of May 21, 2010

As of May 21, 2010, USCIS has received 19,600 H-1B petitions subject to the FY 2011 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 8,200 H-1B petitions subject to the FY 2011 US master’s degree cap, of which there are 20,000 visas each fiscal year.  If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. 

These number are moving quite slowly and we could have another record year where visa numbers remain available until the end of 2010, like last year’s cap, which was reached in December 2009.  However, if the economy does heat up, then these numbers should start moving more quickly. 

Employers can continue to file H-1B petitions for a start date before October 1, 2011, so long as H-1B numbers are available.  However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor.  The employer must file a certified LCA with USCIS in support of the H-1B petition.  Currently, the DOL is taking seven days to certify an LCA, unless it requests evidence verifying the employer’s information.  DOL has been denying many LCAs based on its inability to verify the employer’s FEIN.  This can delay the certification another two weeks.