The H-1B visa is a non immigrant visa classification used by professional foreign nationals who will be employed temporarily by a U.S. employer in either a specialty occupation or as a fashion model. A foreign national can be in H1B status for a maximum period of six years at a time, generally granted in two increments of three years.

Current law limits the number of H1Bs to 65,000 foreign nationals each year. The first 20,000 H1B visas are issued to foreign nationals who obtained their Masters Degree here in the U.S. because they are exempt from the 65,000 cap; H1B visas issued to advanced degree foreign nationals beyond the first 20,000 are then counted against the overall 65,000 cap. Some U.S. Senators have proposed increasing the cap, but legislation has not yet been passed by Congress.

H1B visa renewals and H1B visa extensions of stay do not count towards the annual limits. H1B nonimmigrants who work at (but not necessarily for) universities and non-profit research facilities are also excluded from the numerical cap. Transfers of H1B visas among U.S. employers only count against the cap when the foreign national is changing jobs from a U.S. employer that is exempt from the limits (academia or research) to one that is not exempt (for-profit).

The first day of filing for H-1B visas for FY 2010 is April 1, 2009. If the foreign national is already in the U.S., they must stay in lawful non immigrant status until October 1, 2009 when the H1B visa becomes effective. Although a review of past years (FY2004-FY2009) shows a rapid depletion of the H1B quota every year, FY2008 and FY2009 (i.e., last two fiscal years) have seen the entire 65,000 H1B visa quota met on the very first day of filing. The annual cap for FY 2008 was exceeded on the first day of filing. A random lottery was held, consisting of cases filed on the first two days, as required by regulation. The separate H1B visa exemption quota of 20,000 for U.S. advanced-degree holders lasted only about one month after they first became available for FY2008.

In response to that situation, the procedures changed for FY 2009, as the government decided that there would be a lottery of the cases filed on the first five days of filing, if the cap was reached during any of those five days. The cap was again met on the first day. FY 2009 also saw the entire 20,000 U.S. advanced-degree H1B quota exemptions exhausted in one day.

The government announced that they received about 163,000 H1B visa applications last year, and approximately 31,200 of those were for the Masters Degree category. Advanced degree holders have a better chance of being selected in the H1B lottery than individuals who are seeking a regular H1B visa because the government first holds the lottery for the 20,000 advanced degree visas; applications that are not drawn as part of that selection process are then added to the pool of applications for the 65,000 regular H1B visas, giving the first-time losers a second shot at getting an H1B visa.

Based on what happened in the past, the 20,000 U.S. advanced-degree H1B quota exemptions may also be gone on the very first day of filing for FY2010. In addition, those who did not receive an H1B approval in the last two years will re-apply, adding pressure to the competition to obtain an H1B approval under the pending quota. It is clear from the past two years is that it is highly recommended to file cap-subject H1B cases on April 1st, 2009 in order to best compete for an H1B visa.

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Danielle Homant Nelisse