News Update - December 26, 2009

By Alan Lee, Esq.^†‡

H-1B Cap for FY-2010 Reached; H-1B FY-2011 Cap Opens in 3 + Months

U.S.C.I.S. announced on December 22, 2009, that the fiscal year (FY) 2010 H-1B cap for new petitions was filled as of December 21, 2009 (final receipt date).  Petitions received on the final receipt date will be placed in a lottery system through which a computer generated random selection process will be used to determine the winners on that date.  U.S.C.I.S. will reject the rest and return the fees. 

All is not lost, however, for H-1B applicants who were not able to submit their petitions on a timely basis.  The cap quota was unusual for FY-2010 in lasting from April 1st to December 21st.  In past years, the cap was exhausted on the first days of filing.  The new fiscal year (FY-2011) will open for filings on April 1, 2010, for work to begin October 1, 2010.  Thus new H-1B filings can be submitted in just a little over three months from now.  As the economy has thus far not shown an ability to sustain any job growth, we foresee that H-1B filings for FY-2011 will also not be exhausted immediately after the quota opens in April.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2009 Alan Lee, Esq.

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