It is expected that the H-1B cap will be reached this week, if it has not been reached already. USCIS announced on December 17 that, as of December 15, 64,200 of the available 65,000 H-1B numbers for this year had been used. The agency will notify the public once it has received the necessary number of petitions to meet the H-1B cap, known as the “final receipt date.” To ensure a fair system, USCIS will, if needed, implement a lottery system to randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.

New H-1B cap-subject petitions cannot be filed until April 1, 2010 for an October 1, 2010 start date. Employers should start assessing alternative visa options for affected foreign nationals right away.

In addition, employers who have hired graduates from U.S. schools should keep in mind that they may be able to take advantage of the “cap-gap” provision or STEM provision to continue the employment of those graduates in the absence of H-1B numbers. The cap-gap provision will allow graduates who have Optional Practical Training (OPT) employment authorization that is valid on the date an H-1B cap-subject petition is filed (April 1, 2010 or later) to continue working through the date the approved H-1B becomes effective (which will be October 1, 2010). The STEM provision allows graduates who have OPT employment authorization based on a degree earned in a listed science, technology, engineering or math program to apply for a 17-month extension of their employment authorization, if their employer is enrolled in E-Verify. Employers will have to balance the risks and benefits of E-Verify participation when determining whether to take advantage of this provision.

This entry was written by Aimee Clark Todd.