Starting April 1, H-1B visa petitions may be submitted subject to the fiscal year 2011 cap, the United States Citizenship and Immigration Services (USCIS) announced on Thursday.
The FY2011 cap, which is the numerical limitation on H-1B petitions, is set at 65,000 by the U.S. Congress; however the USCIS clarified that the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher would be exempt from the cap. In FY2010 the H1B cap was reached on 21 December 2009.
In an announcement earlier this month, the USCIS said it would “monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap.” USCIS added that if needed it would randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.
The H-1B visa for professionals in a specialty occupation permits U.S. employers to fill a position requiring the minimum of a baccalaureate in the particular field with a qualified worker from abroad. The foreign worker is required to possess a U.S. degree or an acceptable foreign alternative.
However speaking to The Hindu, immigration lawyer Sheela Murthy said that it would take a much longer time to reach the cap this year. She said that in a memorandum issued by the USCIS on January 8, 2010 the government should reconsider whether it ought to grant H-1B visas to consulting companies.
“This would significantly affect Indian companies in particular,” Ms. Murthy said, adding that many Indian companies, particularly in IT and related sectors have, since January, been facing a spike in routine denials of H-1B extensions. The memo is likely to have been issued due to pressures from the high rate of unemployment in the U.S. this year, Ms. Murthy explained.
The USCIS has also proposed redefining what constitutes an “employer,” Ms. Murthy said, and it has reverted to a definition of the term under British common law, which would again preclude many Indian firms from obtaining such visas for their employees.