THE H-1B CAP: “PUTTING A QUOTA ON INTELLIGENCE”
Until very recently, the H-1B program was plagued with cap and quota problems. The yearly quotas run by fiscal year, or October 1 through September 30 the following year. USCIS regulations allow filing for an October 1 start date no earlier than six months before, or April 1. So many employers and employees gear up in March of each year to file their new H-1B”s. Since 2004, the worldwide yearly H-1B quota has been only 65,000. The quotas started filling up in less and less time, until in the 2008 and 2009 fiscal years, the quotas filled up on the first day of filing!
Changes in H-1B acceptance – and of course the downturn in the economy – dramatically slowed the filling of the H-1B cap for FY2010, and the cap remained open from April 1 through December 21, 2009. The FY2011 cap did not fill up until January 26, 2011.
Some employers, however, are not counted against the cap. Most notably, research institutions, or nonprofits affiliated with a university, or universities themselves are not subject to the H-1B cap. Sometimes this can make all the difference for a foreign student who finds himself locked out because the cap is closed. Through skillful lawyering it is sometimes possible to persuade USCIS that a particular employer is “affiliated” with a university and hence render the H-1B cap-exempt.
AILA immigration lawyers have been very vocal, along with many business leaders and politicians, in raising awareness of the impracticability of the fixed H-1B cap. Clearly, demand outstripped supply. Remember, these visas are by definition for those engaged in “specialty occupations” – professional degree holders who are a net positive into the economy. In the words of Bill Gates, founder of Microsoft, the fixed H-1B cap both literally and figuratively “puts a quota on intelligence.”