The United States Citizenship and Immigration Service (USCIS) announced on 12/21/2009 that it has reached the cap of 65,000 authorized H-1B visas for fiscal 2010. An H-1B visa is intended for an employee in a “specialty occupation” which basically means the equivalent of a US bachelor's degree or higher. Under section 214(g)(5) of the H-1B Visa Reform Act of 2004, an exemption to the cap exists for holders of a US-earned masters degree or higher, permitting an additional 20,000 H-1B visas. This additional 20,000 visa master degree cap has not yet been reached for fiscal 2010.

Since the USCIS' fiscal year runs from October 1 through September 30, there are no H-1B visas available for non cap-exempt employees until October 1, 2010. The earliest date that an employer can file for an H-1B visa, for the visa to commence on or after October 1, 2010, is April 1, 2010.

If subject to the cap, an employer should consider whether the prospective employee is otherwise cap-exempt on other grounds. These include extending the H-1B visa of a current H-1B visa holder; changing the terms of employment of a current H-1B visa holder; or permitting a current H-1B visa holder to change employers or seek concurrent employment. Also, if a prospective employee has been counted in the H-1B cap within the past six years, then the cap does not apply unless the prospective employee left the United States for at least one year during that time period. If subject to the cap, the prospective employer will only be able to obtain an H-1B visa for the balance of the unused six year period.

Some businesses are also exempt from the H-1B visa cap, such as educational institutions of higher learning, a governmental research organization, or a nonprofit basic or applied research organization. The USCIS will also permit a business to claim an exemption to the cap if the prospective employee will perform his or her duties at one of the above qualifying organizations and in doing so, the employee is directly and predominantly furthering the purposes of the qualifying institution.

If a prospective employee is subject to the H-1B visa cap and no exemptions apply, there are alternative work visas worth considering: the F-1 visa's optional practical training period, the J-1, B-1, O-1, TN, H-1B1, E-1, E-2 and E-3, and the L-1A and L-1B visas.

◀︎ Back to Thought Leadership