H-1B Cap Reached for 2011 Fiscal Year

By Donald Parker and John Gallini

Immigration Attorney Donald ParkerOn January 27, 2011, the CIS announced that the H-1B cap for the 2011 fiscal year had been reached on January 26, 2011. Any H-1B cases received by the CIS after January 26, 2011 will be rejected and returned. The USCIS will place all cap-subject H-1B petitions that were received on January 26, 2011 into a lottery and winners will be chosen through a computer-generated random selection process. H-1B1 visas continue to remain available for Chile and Singapore citizens under their respective Free Trade Agreements.

Immigration Attorney John GalliniGiven this news employers should be careful when recruiting and interviewing candidates. If a candidate indicates that he/she will require sponsorship, try to determine whether the candidate has previously been issued an H-1B visa in the past several years. These candidates may be exempt from the annual H-1B cap. If the candidate has previously held H-1B status, it is important also to know whether the H-1B visa was for employment with an “exempt” institution. Institutions of higher education or “affiliated” employers, non-profit research organizations and governmental research organizations are exempted from H-1B numerical limitations. A candidate that has only held H-1B status through one of these “exempt” employers will be subject to the H-1B cap when moving to a non-exempt H-1B employer.

To read our full immigration alert on this subject, please visit our website.

Please contact John Gallini or Donald Parker if you have any questions about how the exhaustion of the FY 2010 H-1B cap may affect your company.

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