USCIS reports that as of as of 11/18/2011 (last Friday), they have received approximately 61,800 H-1B cap-subject petitions. This means that there are only a few thousand H-1B slots left for this fiscal year.

Should I try to file the H-1B petition now or wait until the new cap season?

It is possible that the H-1B cap will be reached within the next couple of days, but you could always try filing now. Some foreign nationals are currently in the U.S. working on OPT, and they and their employers are wondering if they should file now, or wait until April 1 to file the new petition. This is a decision that must be made on a case-by-case basis; no blanket rule fits all situations. However, one thing to consider: the H-1B cap gap! This means that if the foreign national is working on OPT and timely files an H-1B petition, the foreign national can keep working until the H-1B takes effect on October 1. This is true as long as the H-1B petition is not denied, revoked, or withdrawn. This is a fantastic strategy to ensure seamless employment authorization, and gives flexibility in timing the H-1B petition filing.

Emily Sumner is an immigration attorney in Richmond, VA, but serves clients throughout the U.S. and the world.