As of January 26, 2011, Citizenship and Immigration Services indicated that it received sufficient H-1B petitions to reach the annual cap of 65,000 visas for fiscal year 2011 (October 1, 2010 – September 30, 2011). As of December 22, 2010, it had received more than 20,000 petitions toward the annual exemption amount for individuals with U.S. graduate degrees. Employers now must wait until April 1, 2011 to file "new" H-1B petitions for an October 1, 2011 effective date, which is the start of fiscal year 2012.

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). The cap 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 or affiliated nonprofit, a nonprofit research organization or a governmental research organization in most cases will be subject to the cap. These organizations are exempt from the H-1B cap, and when a foreign national transitions to a non-exempt employer, he/she then becomes cap-subject.

Each year the H-1B cap typically is reached before the end of the fiscal year. Once the cap has been reached, no new petitions may be filed or approved until the next fiscal year. This can make planning an employment start date difficult. For example, although employers can file petitions up to six months in advance of the requested effective date, which makes the April 1 filing date each year so critical, the approved petition will not be valid until October 1 of that year. Thus, even though employers may file petitions in the April 1 – September 30 timeframe for the next fiscal year, the petition cannot be effective until October 1. F-1 students often have work authorization to allow them to remain in the U.S. and work while awaiting the H-1B effective date. For other cap-subject individuals, such as those currently abroad or do not have H-1B status, they must wait until October 1 before commencing employment.

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 in a particular field is required. Examples include engineers, accountants and many information technology positions.