The USCIS today announced that it had received enough new H-1B petitions to consume all of the 65,000 available H-1Bs for this coming fiscal year, which begins on October 1, 2005 and ends on September 30, 2006. Petitions for H-1B classification must be filed up to six months in advance of the work start date.

USCIS stated that as of August 10th a total of 58,200 cases had been filed against the fiscal year (FY) 2006 cap. While the Congressionally-mandated total H-1B cap for FY2006 is 65,000, over ten percent of those numbers are reserved for nationals of Chile and Singapore under the new Free Trade Agreements (FTAs) that took effect January 1, 2004. (Many of the Singapore / Chile numbers are expected to be added back to the general H-1B cap after October 1st). Thus, no more H-1B visas are available under the cap for the coming fiscal year, nearly two months before the year begins.

According to the latest report, the 20,000 H-1B visa numbers available during FY2006 for foreign nationals holding Master's degrees from U.S. universities are not yet close to being depleted.

Employers should also be aware that the cap does not affect H-1B employees who (1) change employers; (2) apply for extensions of stay; and, (3) change jobs where the employer files to amend a previously approved petition. Also, the cap does not apply to employees of institutions of higher education and related non-profit entities or non-profit research organizations.

In order to obtain more H-1B numbers, Congress will need to enact new legislation. We cannot predict the likelihood of the President signing into law a bill increasing H-1B numbers.

Employers who miss this year's cap will have to wait to file new H-1B petitions commencing in Fiscal Year 2007. Those H-1B numbers will only be available for start dates on or after October 1, 2006. Employers may file up to six months in advance of the H-1B visa or status start date, and should plan their case strategy accordingly.

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