News August 1, 2005

H-1B Cap for Coming Fiscal Year Nearly Reached

The USCIS today announced that it had received enough new H-1B petitions to consume nearly 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.

The CIS has stated that as of July 31, 2005, a total of 49,040 cases had been filed against the fiscal year (FY) 2006 cap. While the Congressionally-mandated total H1B 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 in after October 1st). Thus only 58,200 H1B visas are available under the cap for the coming fiscal year, leaving approximately 9,160 available as of July 31st, two months before the new year begins.

According to the new 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.

We expect the remaining standard H-1B numbers to be depleted quickly, as those with H1B cap-subject cases will likely file their H-1B petitions in the coming weeks to lock in one of the remaining H1B cap numbers. (USCIS regulations state that issuance of cap numbers are based upon the date of case filing, not approval.)

Note 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. The cap also 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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