The latest public count on the H-1B cap for the coming Fiscal Year (FY2012) indicates that as of May 20, a total of only 12,300 cases had been filed against the cap.

There are 65,000 H-1B visas available for this coming fiscal year, which begins on October 1, 2011 and ends on September 30, 2012. While the Congressionally-mandated total H-1B cap for FY2007 is 65,000, over ten percent of those numbers are reserved for nationals of Chile and Singapore under the Free Trade Agreements with those countries. (Many of the Singapore and Chile visa numbers are expected to be added back in after October 1) Thus, only 58,200 H-1B visas are available under the cap for the coming fiscal year, leaving 45,900 visas available as of mid-May 2011, over four months before the new fiscal year begins.

According to the latest report, only 8,500 cases have been filed which will count against the 20,000 H-1B exempt visa numbers available during FY2012 for foreign nationals holding Master’s degrees from U.S. universities.

We expect the remaining standard H-1B numbers to be depleted over the coming few months, as those with H-1B cap-subject cases file new H-1B petitions to lock in one of the remaining H-1B cap numbers. (USCIS regulations state that issuance of cap numbers are based upon the date of case filing, not approval.) Employers may file up to six months in advance of the H-1B visa or status start date, and should plan their case strategy accordingly. Last year, the agency announced that the cap had been reached on January 26, 2011, less than four months into the fiscal year.

Note that the cap does not affect H-1B employees who (1) change employers; (2) apply for extensions of stay; and, (3) change jobs where the employer files to amend a previously approved petition. The cap also does not apply to employees of institutions of higher education and related non-profit entities or non-profit research organizations.

(c) 2011 Leete, Kosto & Wizner, LLP   See related Disclaimer at www.lkwvisa.com