As of August 14, 2009, Citizenship and Immigration Services indicated that it had received approximately 45,000 H-1B petitions toward the annual cap of 65,000 visas. An additional 20,000 petitions had been filed toward the 20,000 exemption amount for individuals with U.S. graduate degrees. Therefore, there remain approximately 20,000 H-1B visas for the next fiscal year, which runs October 1, 2009 to September 30, 2010. In recent years the entire 85,000 visa slots were allocated before the fiscal year began (employers can file up to six months in advance of when visas are available). The H-1B visa filings thus have become one of the proverbial canaries in the mine as an indicator of the overall economic situation. With the staggering number of layoffs and dearth of hiring among employers, the demand for H-1B visas to employ foreign national employees has decreased substantially. Monthly H-1B filings are averaging less than 1,000. This means H-1B visas for "new" hires likely will be available well into the 2010 fiscal year.

A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. graduate degree candidates). It does not apply to one who already has an H-1B visa or status. An exception that private sector employers should note, however, is that an H-1B foreign national currently working for a university in most cases will be subject to the cap. Universities are exempt from the H-1B cap, and when a foreign national leaves a university for the private sector, he/she then becomes cap-subject.

The H-1B visa category is for the temporary employment of foreign nationals who will work in “specialty occupations.” Specialty occupations generally are those jobs for which at least a bachelor’s degree is required. Examples include engineers, accountants and many information technology positions.