• Demand for H-1B's in Fiscal Year 2011
  • March 17, 2010 | Authors: Sanford A. Posner; David Whitlock
  • Law Firm: Elarbee, Thompson, Sapp & Wilson, LLP - Atlanta Office
  • April 1, 2010 marks the date that the U.S. CIS will begin accepting H-1B petitions from employers filing on behalf of new employees. The class of new hires is generally comprised of recent university graduates and overseas workers . Currently, U.S. employers are reluctant to add to their work force given the slow rebound of our economy. However, major economic indicators are pointing toward growth and by the end of 2010 the impact of government incentives for employers will spur more hiring.

    The H-1B quota for fiscal year 2010 was met on December 21, 2009. In comparison to the previous two years of H-1B demand, it was well off the mark. In fact, December 21, 2009 marks the latest date that the H-1B quota was met in a decade. During the 2000's, H-1B need crept up until we had peak demand in fiscal years 2008 and 2009. For those two quota years, a lottery system was implemented to handle the overflow of petitions. We expect that the H-1B quota will be met before December 21st this year.

    Demand for H-1B's will predictably spike in April, but it will not be as strong as in past years. Employers are still tentative about committing resources to new hires early in the year. However, as graduates enter the job market in May and June and as new government measures encouraging hiring take effect, there should be another spike in H-1B filings. The filings should jump again at the end of summer when businesses enter the third quarter of the year and employers are feeling more confident about their revenues. Finally, when the numbers begin to dwindle, then the fence sitters will join the fray sparking a frenzy until the quota is filled.

    This year, employers are in a great position to take a wait and see approach in regards to H-1B filings. Employers should be able to hold off on their H-1B filings until the second quarter. Also, due to a recent memorandum released by the Immigration Service regarding employer-employee control, employers in the IT sector and placement companies may want to watch how cases are decided given the new guidance. Unfortunately, the Immigration Service, in a back door attempt to create regulations, is incorporating some of the requirements of their recent memorandum into a revised I-129 form. It is likely that the new form will be released before the end of the fiscal year and it will create a new burden to employers in regards to the kind of initial evidence they will be expected to produce. Regardless of the revised I-129 impact on processing, it is expected that H-1B demand will increase as the year goes on.