DHS Announces H-1B Visa Cap Reached

January 27, 2011

      The Department of Homeland Security (DHS) that it has received enough H-1B visa petitions as of January 26, 2011, to reach the visa cap.  As such, the DHS will reject any H-1B petitions filed on or after January 27, 2011.  The next filing period for H-1B visas commences on April 1, 2011.

     The immigration laws provide for 65,000 H-1B visas each fiscal year (October 1 to September 30), plus another 20,000 H-1B visas for those who have attained a US Master’s degree or higher.  The CIS began accepting petitions for H-1B working visas on April 1, 2010.  As indicated, the DHS has received as of January 26, 2011, the maximum number of H-1B visa petitions allowed under the visa cap for the current fiscal year.

     The opportunity to file H-1B visa petitions is helpful as it is the most used visa category for work authorization in the US.  The H-1B visa is used by US companies -- both small independent companies and large multinational corporations -- to gain temporary employment authorization for professional workers.

     To qualify for an H-1B visa, the petitioning company must be able to prove the following requirements:  (1) the position which the immigrant will fill is a “specialty occupation”, and (2) the immigrant meets the requirements for the specialty occupation.  In other words, the company must prove that the position offered is a professional position that mandates an individual with at least a bachelor’s degree or equivalent in a specific field, and that the individual sponsored has that particular type of bachelor’s degree or work experience equivalence.

     The H-1B visa allows the individual to work in the US for an initial period of up to three years.  The H-1B visa can thereafter be extended for another three years, and then at one to three year intervals provided certain requirements are met.  While working in the US as an H-1B visa holder, the individual can then undertake the steps necessary to obtain lawful permanent residency.

     The family members of an H-1B visa holder are also able to derive benefits for themselves.  The spouse and unmarried children under age twenty-one are eligible to obtain an H-4 dependent visa in order to accompany the H-1B visa holder to the US.

     Now that the H-1B visa category for this fiscal year has closed, companies may only proceed with the filing of an H-1B visa petition starting April 1, 2011.  H-1B petitions being filed starting April 1, 2011, will allow an individual to commence work no earlier than October 1, 2011.

     With the closing of the H-1B visa category for this fiscal year, companies and individuals must now assess other possible visa categories.  Given the significant risk of becoming out of status in the United States, individuals should ensure that they consult with an attorney to explore any possible opportunities to remain lawful in the United States.