Going, Going, Gone: H-1B Cap Reached on December 21, 2009

    On December 21, 2009, the US Citizenship and Immigration Service (“USCIS”) announced that they had received enough H-1B visa petitions to meet the cap for FY 2010.   Any petitions that are subject to the cap which are filed after December 21, 2009 will be returned.  In addition, some petitions filed on December 21, 2009 will also be rejected. The USCIS will select certain cases filed on December 21st by a random lottery, since there are not enough visas available to meet all cases filed as of that date. This marks the end of the FY 2010 H1B cap filings, which began on April 1, 2009.

    This means that any employer seeking to hire a new foreign worker with specialized knowledge must wait until April 1, 2010 to file for an H-1B visa.  The worker can begin work at the beginning of the 2011 fiscal year, which is October 1, 2010.

    There are certain types of H-1B cases that are not subject to the cap.  These include petitions filed to extend, amend H-1B employment, or change employers for foreign workers already in H-1B status.  Also, new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the H-1B cap.  For current H-1B workers

    The H-lB visa program is used by US. organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field, such as engineers, accountants, lawyers, scientists, or computer programmers.  As part of the H-1B program, the Department of Homeland Security (DHS) requires U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, such as payment of the “prevailing wage.”

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