On April 9, 2009, the United States Citizenship and Immigration Service (USCIS) provided an updated H-1B cap count for petitions filed in the fiscal year 2010 program. USCIS said that it has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap.  Additionally, it has received approximately 20,000 petitions for aliens with advanced degrees; however, USCIS will continue to accept advanced degree petitions since not all petitions received are approvable.   As stated in our last article on the H-1B program, USCIS continues to accept H-1B petitions for the regular cap as well.  We will provide more information at www.bashyamspiro.com as it becomes available.

U.S. Citizenship and Immigration Services (USCIS) today announced that it continues to accept H-1B applications subject to the Fiscal Year 2010 (FY 2010) cap. USCIS said it will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap. If USCIS receives the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. 

USCIS also states that it reserves the right to randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date.  Since the initial ‘5-day’ filing period has passed, it is not clear if a random lottery system is needed.  As more information becomes available, we will post it at www.bashyamspiro.com.

On March 31, 2009, companies around the country filed thousands of H-1B applications for their foreign workers.  How many thousands of cases were filed?  Right now, nobody knows.  Last year, it took the U.S. Citizenship and Immigration Service (USCIS) approximately one week to report that it had received close to 163,000 H-1B applications.  Although we do not think that the numbers will be that high this year, they are still likely to be close to or exceed the normal H-1B cap of 65,000. 

The USCIS has stated that, depending on the volume of filings, it may trigger the 5-business-day filing rule.  This means that the H-1B filing window will end on Tuesday, April 7, 2009.  If there is sufficient volume of filings to trigger this rule, the USCIS will conduct a random lottery after that date.

Our office will keep you updated once the USCIS provides information on the volume of filings, the 5-day filing rule, or anything else related to the H-1B situation.  In the meantime, we would like applicants to keep the following in mind:

·         If your H-1B application requested a ‘change of status’, any travel while your case is pending will result in an abandonment of the ‘change of status’ aspect of the application.  This does not mean that the entire case is over.  It only means that if your case is ultimately approved, you will have to leave the U.S., obtain an H-1B visa on or after October 1, 2009, and return to the U.S. with that H-1B visa and approval notice in order to work in H-1B status for your sponsoring employer.  Until then, you will not hold H-1B status even if the case is approved by USCIS.
 

·         Last year’s ‘cap gap’ rule will be in effect this year as well.   If you are a student in valid F-1 status but your Optional Practical Training (OPT) expires sometime before October 1, you will be able to remain in the U.S. until that date if your H-1B application is selected and approved.  If the H-1B application is ultimately revoked or denied, the automatic extension of OPT will be terminated.   

Immigration and Customs Enforcement recently issued a memo on the ‘cap gap’ rule.  We recommend that employers and students take the time to read the memo, which can be accessed by clicking here.

Stay tuned to www.bashyamspiro.com for additional updates and information.