The early returns are in and projections for when the H-1B cap will be reached for the 2011 season (FY 2012) have already begun.
Unlike the April filings in 2007 and 2008, when the H-1B cap was reached during the first week (if not the first days), the last three (3) H-1B cap filing seasons (April 2009, 2010 and 2011) have seen a steady drop in early filings. Indeed, in the first week of April 2009 there were approximately 42,000 cap subject petitions filed; in 2010, approximately 13,500; and this year, only 10,400 were filed in the first week.
So, this begs the question of when will the FY 2102 cap be reached? Based on the number of filings in the previous two (2) years, unless there is a dramatic economic turnaround in the U.S., a best guess would be sometime in February or March 2012.
Of course, the rate of cap subject filings over the last several years signifies that there is no real need for an H-1B cap in the first place. Outside forces, other than an arbitrary cap set by Congress years ago, now drive new H-1B usage, e.g. the fragile status of the U.S. economy and its direct effect on the high unemployment rate; increased scrutiny by USCIS regarding IT consulting companies who place H-1B workers at client sites (as a result of the “Neufeld Memo”); recent amendments to the H-1B regulations which have increased the fees for high users of the H-1B program; the limited period of authorized stay in such classification; the increased outsourcing of work from the United States to elsewhere abroad; increased opportunities to prosper in growing economies like India and China which have traditionally used large numbers of H-1B visas in the past; increased enforcement against those who do not abide by the rules of the H-1B program; and, of course, the increased availability of U.S. workers due to the steady 8 to 9% unemployment rate in the United States.
As has been furthered by the authors of this blog on many occasions, as well as by many others far more erudite, the H-1B cap should be eliminated. Of course, in today’s political climate where Congress cannot even agree that passage of the Dream Act would be a sensible and compassionate form of relief for thousands of young foreign nationals of college age with nowhere to turn, it is more than wishful thinking that the H-1B cap will be eliminated anytime soon.
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
Anthony F. Siliato the founder of Meyner and Landis LLP’s Immigration Law Group, has been practicing Immigration Law for more than 25 years. He is chiefly responsible for the firm's business and corporate-related immigration matters which involve the recruitment, hiring, transfer and retention of international personnel worldwide. A past chair of the New Jersey Chapter of the American Immigration Lawyers Association (AILA), Mr. Siliato remains an active member of AILA, serving as a mentor and frequent speaker on employment-related immigration matters. Mr. Siliato currently serves as a member of the Advisory Board of the International Institute of New Jersey, a non-profit organization whose mission statement is to help immigrants and refugees build full and productive lives in the United States and work to ensure their fair and equitable treatment. He was selected as a Super Lawyer in the area of Immigration Law by New Jersey Monthly Magazine (2008, 2009). You may reach Mr. Siliato at email@example.com.
Scott R. Malyk is an associate with Meyner and Landis LLP’s Immigration Law Group, specializing in all aspects of corporate and business-related immigration law. He works with businesses of all sizes, from Fortune 500 companies to international startups. Mr. Malyk also represents self-petitioning foreign nationals seeking investment opportunities in the U.S., as well as those seeking National Interest Waiver approval. Additionally, Mr. Malyk represents outstanding scientific researchers, medical professionals, attorneys, foreign legal consultants and a variety of others with extraordinary abilities in the sciences, arts, education, business, and athletics, who wish to come to the U.S. to work in their area of expertise. Such efforts include obtaining temporary and permanent visas for artists, fashion models, musicians, chefs, professional athletes and other entertainers. You may reach Mr. Malyk at firstname.lastname@example.org.