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H1B Visa FY2010 December Final Update

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As we noted in both our H1B Visa October update and H1B Visa November update as well as our General US Immigration update earlier this month, the H1B visa season was effectively extended to fill the FY2010 quota.

However as you would have noticed in these 3 updates, the H1B visa quota which was so stagnant for so long during 2009, was fast filling up at the end of the year. Now nearly at the end of the calendar year of 2009, just before Christmas, on December 22, 2009, the USCIS has announced that December 21, 2009 was the last date for accepting H1B visa petitions.

The USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009.  USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Therefore the FY2010 H1B visa allotment as it stand is effectively over, although there is a small chance that enoough of these petitions may be rejected such that there may be some available visas. Although usually the USCIS accepts a greater amount of petitions to account for this fact, so this is very unlikely.

This means that if you have a prospect employer for the H1B visa you will have to wait until the FY2011 H1B visa season begins on April 1, 2010 to file your petition via your sponsor employer. It is still now the best time to get everything organized such that you give yourself the best chance for this to happen in time as there is always a lot to organize. So if you have been searching for employment do NOT give up your search.

It should be noted that H1B visa petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

H1B Visa November Update

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You may remember from our October H1B Visa update for FY2010 that the USCIS reported that were going to continue to accept H1B visa petitions until the H1B visa quota for the year has been exhausted.

The latest USCIS update for the quota was released on November 6, where the reported receiving 54,700 H1B visa petition filings on top of the already 20,000 approved advance degree cap exemption filings. The annual quota is of course 65,000 for the main group so there is still at least 10,000 visas available and probably a fair number more as many of the H1B visa petitions will be denied or revoked.

The other major update the USCIS released for the H1B visa for November is that due to the Department of Labor (DOL) having a major backlog and delays with certifying and issuing the approved Labor Condition Application (LCA) which is need prior to filing the H1B visa petition with the USCIS.

For the next 120 days from November 5 2009, through March 10, 2010 (or whenever the cap is exhausted), the USCIS will accept H1B visa petitions even without the approved LCA from the DOL if it has been filed at least 7 days prior to sending the petition to the USCIS. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA to prove this when filing with the USCIS without the approved LCA.

Following this H1B visa applicants and the prospective sponsor employers who make use of this temporary flexibility in the normal filing procedures for H-1B visa petitions must wait until they receive a request for evidence (RFE) before they submit the DOL approved LCA to USCIS in support of the H-1B visa petition.

The USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE.  Ultimately the USCIS will only approve H-1B visa petitions that include certified approved LCAs.

The most interesting thing has been since the October 1 (i.e. the start of the new US Immigration year), the rush of applicants and companies filing for the H1B visa meaning the job market is seeming picking up for college educated folks despite the 26 year record high 10.2% unemployment rate nationally.

Actually if you look at the following NY times interactive chart for unemployment you can easily see how not all groups are effected equally and the market for laid off H1B visa workers, F1 Student visa graduates and foreigners wanting to work in the US in general may be looking up finally 🙂

Good Luck,
CJ