Fear of H-1B Visa Depletion Causes crisis in the U.S. Business Community
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Fear of H-1B Visa Depletion Causes crisis in the U.S. Business Community

March 10, 2010, 7:09 pm
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Susan Scheer, Immigration attorney explains when it is best to file the H-1B visa petition
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Problems plaguing the H-1B non immigrant temporary worker visa program have had a negative affect on the U.S. business community for many years.  This past year the number of H-1B petitions filed experienced a slowdown on the number of visas used until the fourth quarter when the volume picked up sharply  with numbers of new petitions filed drastically  increased until the cap of 65,000 was met on December 21st, 2009.  This raised the hopes of many that the crisis was under control. Experts, on the other hand, believe that the renewed interest in H-1Bs at the end of 2009 is likely to continue in 2010. Therefore, the number of H-1B petitions filed on 4/1/2010 when the new government FY 2011 commences may well exceeds the 2009 volume; causing the same problem has in 2008. Not enough visas available for the demand. 

Immigration attorney worry that the H-1B cap will be met and exceeded within a short period after April 1st which would convert the already received H-1B petitions to a lottery and close the window to file new H-1B applications until FY 2012 starting on April 1, 2011. In 2008, this occurred after only 7 days.  It is possible that, as in previous recent years, USCIS could receive H-1B requests far in excess of the annual quota within the first weeks of filing eligibility, in effect resulting in a random lottery-type selection process.

According to Susan Scheer, an immigration attorney from Morristown, New Jersey who has been focusing on business visas for over 20 years "Immigration lawyers do not know when the annual cap would be reached; a conservative approach would be to assume that soon after the deadline of April 1, 2010, the quota would be exhausted.”

Ms. Scheer is a Co-Chair of the Immigration Section of the Morris County Bar Association and current Chair of the Immigration Section of the NJ State Bar Association.  “The H1-B quota depletion would create a serious problem for employers.  Every sector will feel the shortage especially the technology sector. “

The quota depletion would create a most serious problem for employer; new H1-b work permission wouldn't be valuable until next year, October 2011. A crisis for such business is inevitable. It is recommended to file the petition by express mails on March 31, 2010, and if not possible, within the following 5 days.

According to USCIS (U.S. Immigration and Citizenship Service) regulation, if they receive a sufficient number of petitions to reach the cap on any one of the first five business days of filing (this year, April 1 through April 7) the USCIS may include all petitions filed on all five days in a random selection process. You should just cal it a lottery.

If more than 20,000 U.S. advanced degree petitions are received in the first five days of filing, USCIS will first conduct the random selection process for these petitions.  They have preference. U.S. advanced degree petitions not selected in this process will be placed in the pool of standard cap petitions, and a second random selection process will be conducted for this combined group of petitions.

Petitions not selected in either the U.S. advanced degree or standard cap random selection process will be rejected and the petition and filing fees will be returned to the petitioning employer.

It remains to be seen whether we will see the huge surge of April 1 H-1B filings and rapid cap exhaustion that the business immigration community has experienced in prior years. Because the FY 2010 cap was met just a few months ago, there may be less pent-up demand for quota numbers than usual in the run-up to April 1. At the same time, the momentum of quota usage is more unpredictable this coming year than it has been in the past.

Recovery in the economy and in some areas of business could mean more petitions than last years generally than a slower filing rate would suggest. The accelerated usage of FY 2010 numbers in November and December last year could indicate a comeback in vH-1B visa demand. Due to these uncertainties, filing petitions on April 1, or at least during the first five business days of the filing period, is still the best option to ensure that H-1B hiring needs can be met for the coming fiscal year.


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Author: Moises Apsan
Attorney with over 32 years of experience. Past president Federal Bar Association NJ Chapter (1997-2002). Offices in Astoria, NY, Newark, NJ. Tel: 877-873-8510 http://www.apsanlaw.com and drmoises.com
Apsan Law Offices
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