USCIS Reaches FY 2010 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) has announced that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010.  Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009.  USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Certain H-1B petitions are also exempt from the H-1B cap. These include foreign nationals offered employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization. (USCIS has already received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption.)

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers. On April 1, 2010, USCIS will begin accepting H-1B petitions for FY 2011 (i.e., work beginning on October 1, 2010). Now is the time to begin planning for those petitions.

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