On 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.
Given 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.