FY2010: For the past four years, the entire cap, or numerical limit on new H-1B visas, was reached in the initial week of filing, at the beginning of April, for start dates on or after October 1. In 2009 (FY 2010), that did not happen, due to vastly reduced hiring because of the economic downturn. The H-1B cap was reached on December 24, 2009. Visa numbers are now unavailable!
The New Rules: A regulation was published on March 24, 2008, to make the filing process fairer.
1) The initial filing window is now five business days at the beginning of April 1. All petitions received during this period will be entered in the random selection lottery. Cases selected will be receipted in, cases that lose this lottery will be rejected and returned to petitioners, with documents and filing fees.
2) Duplicate filings are prohibited. If an employer files more than one petition for the same worker, even if they are for different jobs, or Master's cap & regular cap, both petitions will be denied, not rejected.
3) Initial receipts will be pre-screened to identify which cases are allocated to the Master's cap and which cases are allocated to the regular cap, and to flag any duplicates.
4) Cap-exempt cases are also affected: strong documentation must be presented with the initial filing to support the claim that a petitioner or job is cap-exempt, as cases making incorrect claims to cap-exemption will be denied, not rejected. Cases that are cap-exempt due to the nature of the employer now have centralized filing at the California Service Center, regardless of where the job is located. In the wake of the bailout packages recently enacted, Congress has attached certain restrictions on H-1B filing: In a rule published on 3/20/2009, USCIS has posted a Q&A, an additional processing worksheet, and a revision to Form I-129, specifically to the H-1B Data Collection Form, which adds a new question at Part A, question 1.d., which asks if the petitioner has received any TARP funds or funds under various lending facilities authorized by Section 13 of the Federal Reserve Act.
Are there any other categories that add more visa numbers to the H-1B cap?No, not for the general applicant pool. Within the existing cap, 6,800 visa numbers are set aside for use by H-1B1 nationals of Chile and Singapore, pursuant to Free Trade agreements with the United States. This reduces the number in the general pool to 58,200. Unused H-1B1 visa numbers allocated to Chile and Singapore are added back to the general pool of visa numbers for the next fiscal year, but they must be used within the first 45 days of the next fiscal year. (Example: Because the H-1B1 Chile/Singapore Free Trade set-aside was new and unfamiliar, 6,100 of these visas were unused in FY’06, so these numbers were added back to the general pool for the next year, bringing the total number of general H-1B visas available at the beginning of FY’07 up to 64,300) What about the Master's Cap? There is a separate pool of 20,000 additional H-1B visa numbers per fiscal year that is available only to candidates who have earned a Master's or higher graduate degree from a U.S. institution of higher education. This does not include foreign graduate degrees, and it does not include professional post-graduate certificate programs. The extra "Master's cap" numbers are used up as fast or faster than the regular H-1B cap. WHO IS EXEMPT FROM THE H-1B CAP? Some foreign workers are cap-exempt beneficiaries, and some U.S. employers are cap-exempt petitioners. Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted under the cap when their status was granted. This includes any worker already issued an H-1B visa abroad who has entered the US on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold H1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals. Workers in H-1B status who were cap-subject when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers currently outside the U.S., as long as they held H-1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the U.S. Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution. The types of non-profits that qualify for this exemption have been construed narrowly: At present, non-profit service, community, policy and arts organizations do not qualify for the cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner. Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, but many school districts do. The H-1B petition must include a copy of the agreement. The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians' practice group affiliated with and located at a university teaching hospital. How soon can petitions be filed for the next fiscal year? April 1st. All petitions for a nonimmigrant worker can be filed up to six months in advance of the start date requested, so H-1B petitions for a new fiscal year, which begins on October 1, can be filed as of the preceding April. What about people whose work authorization will expire before the next fiscal year begins on October 1? For some types of positions and some individuals, alternative visa categories may be available to allow them to continue working, or at least remain in the United States, until the next fiscal year begins. However, given the length of current H-1B blackouts, there may not be a visa category for which both the job and the individual are currently eligible. This is a high-priority concern for F-1 students graduating in 2008 who have, or will have, OPT (post-completion Optional Practical Training) that expires on or before August 1, 2009. See below. The circumstances of each case should be discussed with counsel, to determine if there is an alternative visa category appropriate to the needs of the employer and the circumstances and qualifications of the foreign worker.
What are the alternatives for F-1 students with OPT?
A new regulation was published on April 8, 2008 that will enable some F-1 students who have an authorized period of Optional Practical Training to extend their OPT for an additional 17 months, extending the total period permitted from 12 months to 29 months. The two groups of students who may benefit from this rule are:
I. Students who have completed a U.S. degree in science, technology, engineering or mathematics, and who accept employment with an employer enrolled in the E-Verify employment eligibility verification program. (The E-Verify program is still error-prone & does not provide the employer with safe harbor protections, so any decision by an employer to enroll in E-Verify should be discussed with counsel.)
II. Students who are beneficiaries of a properly filed H-1B petition and change of status request accepted for processing among the FY'2009 cap cases. | 
