Historical Overview of H-1B Caps: How Long Until All H-1B Visas Were Used Up During FY2004 to FY2008?

• H-1B visa numbers have disappeared very rapidly in recent years.
• Review of FY2004-FY2008 data shows how rapidly the 65,000 "regular" H-1B visa numbers have been used up in recent years.
• Review of FY2004-FY2008 data shows how rapidly the 20,000 "U.S. Advanced Degree" visa number exemptions have been used up in recent years.

H-1B visa numbers have disappeared very rapidly in recent years.

Historically, the shortage of H-1B visa numbers fluctuated between acceptable and completely unacceptable. Last year (Fiscal Year 2008 or FY2008), the entire annual quota of 65,000 H-1B visa numbers were used up on April 2, 2007, the very first day employers could file for them. Because of a special rule, USCIS also included in its FY2008 lottery H-1B petitions received on April 3, 2007. Because USCIS received somewhere between 118,000 and 150,000 H-1B petitions on those two days, petitioners had only about a 50:50 chance of winning the lottery for a FY2008 H-1B visa number.

Unfortunately, Congress does not appear interested in doing anything about it before the November 2008 elections.

Also, although within its authority to grant changes of status from F-1 (student status) to H-1B status despite a gap between the end of the F-1 status (including optional practical training) and the October 1 H-1B start date, USCIS has in recent years refused to grant students the right to stay here between the end of their F-1 status and the beginning of their H-1B status.

Review of FY2004-FY2008 data shows how rapidly the 65,000 "regular" H-1B visa numbers have been used up in recent years.

The following table shows how between FY2004 and FY2008, the depletion of the annual H-1B visa quota of 65,000 has dropped from 322 days to only one day!

With Congress expected not to do anything about this H-1B quota problem during the calendar year 2008, it is likely that the entire 65,000 FY2009 visa numbers will disappear on April 1, 2008, the very first day that the H-1B petitions can be filed for this Fiscal Year.

Review of FY2004-FY2008 data shows how rapidly the 20,000 "U.S. Advanced Degree" visa number exemptions have been used up in recent years.

The graph below shows what happened with the 20,000 quota of "U.S. Advanced Degree" visa number exemptions for Fiscal Year 2008.

Based on purely mathematical extrapolation, one might think that the for Fiscal Year 2009, the 20,000 H-1B visa number exemptions for those who have earned an advanced degree from a U.S. university will last for a week or so. We think it would be a mistake to count on that, however, for the following reasons:

• In 2006, Peng & Weber prepared a mathematical extrapolation on the depletion of the 65,000 "regular" quota, and on that purely mathematical basis, it was expected that the depletion time would drop from 55 days to about 12 days, but in fact, it dropped all the way down to only 1 day! If the depletion of the 65,000 "regular" quota dropped from 55 days to only 1 day last year, it is safest to assume that the 20,000 "U.S. Advanced Degree" H-1B visa number exemption quota will likewise drop from 28 days last fiscal year to only 1 day this fiscal year.

• The economy is still relatively strong, despite the mortgage meltdown, and the demand for these 20,000 "U.S. Advanced Degree" H-1B visa number exemptions is expected to be very high.

• Many of those U.S. Advanced Degree Holders who missed the FY2008 quota of 20,000 visa number exemptions will likely file again for a FY2009 exemption, which will only add to the demand already created by those who will be earning their U.S. Advanced Degrees over the last year.

For the historical reasons discussed above, we believe all 85,000 H-1B visa petitions (i.e., 65,000 "regular" visa numbers, plus 20,000 "U.S. Advanced Degree" visa number exemptions) will be used up on the very first day that employers can file, which is April 1, 2008.

Therefore, if you hope to obtain an H-1B visa this year, it is critical to start early. Waiting until April 1 to get started will likely be too late.  If you miss the Fiscal Year 2009 H-1B quota, the next time non-exempt H-1B visas will become available (absent Congress changing the law) will be April 1, 2009 for a start date of October 1, 2009. That means you (or your employee) will not be able to work until October 1, 2009 unless you (or your employee) are eligible for some other type of work visa.

If you would like to learn how you can improve your chances of obtaining a FY2009 H-1B visa, please see our Fiscal Year 2009 H-1B Cap Page.