We recommend filing H-1B “cap subject” petitions as soon as possible. Approximately 7,000 H-1B are available for the current fiscal year ending September 30, 2011. The USCIS has stated that as of December 31, 2010, a total of 57,300 cases had been filed against the fiscal year (FY) 2011 cap.

While the Congressionally-mandated total H1B cap for FY2011 is 65,000, over ten percent of those numbers are reserved for nationals of Chile and Singapore under Free Trade Agreements (FTAs) that took effect on January 1, 2004. However, according to the USCIS Ombudsman, many of the unused Singapore / Chile numbers from last year were added back into the available pool after October 1, 2010. The 6,350 unused H-1B numbers were added to the 58,200 unreserved numbers, and accordingly, the total number of H-1B visas available in the general H-1B pool for FY2011 is 64,550, leaving approximately 7,250 available as of the end of 2010.

According to the new report, the 20,000 H-1B visa numbers that were available during FY2011 for foreign nationals holding Master’s degrees from U.S. universities have now been depleted.

We expect the remaining H-1B numbers will be depleted quickly, as those with H1B cap-subject cases will likely file petitions in the coming weeks to claim one of the remaining numbers. (USCIS regulations state that issuance of cap numbers are based upon the date the agency receives a petition, not the date of approval.)

Note that the cap does not affect H-1B employees who (1) change employers; (2) apply for extensions of stay; and, (3) change jobs where the employer files to amend a previously approved petition. The cap also does not apply to employees of institutions of higher education and related non-profit entities or non-profit research organizations.

Employers who miss this year’s cap will have to wait to file new H-1B petitions commencing in Fiscal Year 2012. Those H-1B numbers will only be available for start dates on or after October 1, 2011. Employers may file up to six months in advance of the H-1B visa or status start date, and should plan their case strategy accordingly.

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