News September 2004

H-1B Cap for Coming Fiscal Year Nearly Reached

The USCIS recently 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, 2004 and ends on September 30, 2005. 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 September 2, 2004, 45,900 cases had been filed against the fiscal year (FY) 2005 cap. While the Congressionally-mandated total H1B cap for FY2005 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). There are thus effectively only 58,200 H1B visas available under the cap for the coming fiscal year, leaving approximately 12,300 available as of September 2nd, just one month before the new year begins.

We expect the remaining numbers to be depleted quickly, as those with H1B cap-subject cases will likely file their H1B petitions in the coming weeks to lock in one of the remaining H1B cap numbers. (The CIS has stated that issuance of cap numbers is 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.

Employers who miss this year's cap will have to wait to file new H-1B petitions commencing for FY2006 H-1Bs that will only become available on or after October 1, 2005. Employers should plan their H-1B case strategy accordingly.

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.


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