USCIS is reporting today that the H-1B Cap count as of November 22, 2011 has been reached for Fiscal Year 2012 that expires September 30, 2012. This means that employers wanting to hire H-1B workers this year and next will have to wait until the new filing season begins on April 1, 2012 for jobs with start dates of October 1, 2012. The 65,000 cap was reached earlier this year compared to last fiscal year when it was reached in January.

Although the economy has been sluggish, employers continue to hire in some sectors. In this firm’s experience, employers do not spend the time or money on the expensive H-1B process unless they cannot find qualified local talent after extensive recruitment of US workers, even though recruitment is not required for non-H-1B-dependent employers.

Employers with positions not subject to the annual 65,000 cap can continue to file H-1B petitions all year long. The 20,000 masters degree cap was reached back in October 2011. Non-cap cases include employers that are qualified nonprofit or government research institutions, and private employers with affiliations with such entities where the employee will perform the duties “at” the qualifying facility. For details on what these requirements mean, a memo from the government about cap-exempt status is posted on our firm website. See also more recent USCIS pronouncements on the subject of “affiliation.”

Obviously, it makes it difficult for employers to plan for new hires needed from now through next summer. It means delayed hiring, continuing to look for US workers, planning for the April 1 new filing date, and/or consideration of other visa categories. For some employers, the H-1B cap situation is so intolerable, they ship work or jobs abroad. For employers with sensitive product or project life cycles or benchmark deadlines, the H-1B cap can be very disruptive to business growth, product development and overall hiring plans. Congress has refused to remove or increase the annual cap. However, employers who use or have considered the program know that H-1B use should be tied to the market. When employers are not hiring, H-1Bs are not used. But even in a recession, reaching the cap later in the year shows that there is still hiring in certain sectors and that H-1B visas drive innovation and expansion. Employers don’t use the program when there are ample US workers because of the expense, wage and other liability requirements of the program. However, there has been sufficient growth in some sectors even during a recession, especially in IT, health care, biotech and other Science Technology Engineering and Math (STEM) sectors. According to the US Labor Department’s 2010 Annual Report on Foreign Labor Certification, STEM professionals made up at least 50% of the labor condition applications required for H-1B status. The report states:

Positions in Software Engineering, Computer Systems Analysis and Programming represented nearly 40 percent of the total H-1B certified positions….Fifteen States had over 5,000 [H-1B] certified positions during FY 2010. Washington [State] had the largest increase of positions certified, up 45 percent from FY 2009.

The DOL survey shows that locally, the majority of certifications in Washington State were in Bellevue/Redmond where Microsoft and many of its vendors and suppliers are located. However, overall, outside of the Washington, D.C. area, Washington State has seen the most job growth in STEM fields compared to the rest of the country, 70% of which are in the Seattle area, according to a 2011 study by the Washington Research Council.