Wednesday, July 28, 2010


The recent sluggishness of the U.S. economy has had a positive impact in immigration law. Many of our nation’s best and brightest are foreign-born professionals and entrepreneurs. They come to the United States seeking education in our world-class higher educational system or seeking to invest and participate in our economy. Many of these foreign-born graduates, professionals, and investors participate in the H-1B visa program - to the benefit of our nation’s businesses, nonprofits, educational institutions, and even our government.

The H-1B visa is available to U.S. businesses and other institutions seeking to employ foreign workers in specialty occupations requiring expertise in specialized fields. These occupations include executives, accountants, engineers, scientists, doctors, computer programmers, and others requiring a bachelor’s degree or higher or equivalent experience. Participation in the H-1B visa program is accomplished through the filing of an H-1B petition with U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security component administering the program.

At the beginning of every fiscal year, October 1, an allotment of 65,000 visas is made available to the program (the Regular Cap). An additional 20,000 visas are also made available each fiscal year to H-1B petitioners hiring foreign workers who possess a master’s degree or higher from a U.S. institution of higher education (U.S. Master’s Cap). Finally, a maximum of 6,800 visas are deducted from the 65,000 visa allotment and made available exclusively to U.S. petitioners seeking to higher Chile and Singapore nationals who are eligible for H-1B1 visas under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Petitions filed in the H-1B visa program can be filed six (6) months ahead of the beginning of the fiscal year or on April 1. Petitions filed after the cap is reached are rejected for that fiscal year.

Historically, the H-1B visa program is a competitive visa classification. Over the past decade the H-1B cap has been reached almost every year on the first days visas are available - or on April 1 for an October 1 start date. In the past USCIS used a lottery system to select which petitions where accepted under the caps. This system was costly and unpredictable. U.S. businesses that undertook the expenses of preparing petitions under the H-1B visa program stood to lose their investment, and the future productivity of this worker, due to simple chance.

The recession and economic contraction of the past year or so has lessened demand for these visas. Last year, the H-1B cap was not reached for fiscal year 2010 until December 22, 2009 - almost three (3) months after the beginning of fiscal year 2010.

This year, fiscal year 2011, USCIS has received 26,000 H-1B petitions under Regular Cap and 11,300 H-1B petitions under the U.S. Master’s Cap as of July 23, 2010. This leaves approximately 46,700 H-1B visas available to H-1B petitioners seeking to hire foreign workers for an October 1 start-date. The availability of these visas for the foreseeable future allows U.S. businesses, nonprofits, and other institutions to benefit from the productivity, drive and ingenuity many foreign professionals, and graduates of U.S. universities, possess and contribute to their employers. U.S. businesses can plan their hiring carefully without fear of losing their potential hire to a roll of the dice.

If you or your business has been waiting to participate in the H-1B program, now is the time. If you would like additional information regarding participation in the H-1B program or to schedule a meeting, please contact the Wiggin & Nourie, PA Immigration Department.