The Department of Homeland Security has released figures concerning H-1B visa usage for the first quarter of fiscal year 2004 which ended on December 31, 2003. DHS has indicated that, based on the number of approvals of H-1B petitions which are subject to the annual numerical limit of 65,000¹, and those which remain in the queue for adjudication, 43,500 will be counted against the cap.

The annual numerical limit of 65,000 only applies to "new" petitions (i.e. those filed in behalf of prospective specialty occupation professionals who are being accorded H-1B nonimmigrant classification for the first time). Common examples are those filed in behalf of individuals who are presently residing abroad and who will be entering the U.S. to commence H-1B employment, or petitions filed for those who are in the U.S. in a different nonimmigrant status (i.e. B-l/B-2 visitor, F-1 student, J-1 exchange visitor). Petitions for extensions of stay with the same employer; H-1B petitions filed by a new employer for an individual who is already in H-1B status; amended H-1B petitions filed because of changes in job duties/job site; or petitions for concurrent H-1B employment are not counted against the cap.

Given the H-1B usage figures above, it is highly likely that the numerical limit will be reached before the end of the second quarter of the current fiscal year, or March 31, 2004. It is therefore critical that any H-1B "cap" situations be identified as quickly as possible, and that employers request Premium Processing for these types of petitions. For a more detailed discussion of the H-1B cap, please refer to our September 2003 issue of Spotlight. 

[1] Please note that the 65,000 limit is further reduced by 6,800 visas based on Free Trade agreements with Singapore and Chile. This means that the H-1B cap is actually set at 59,200 per year with the possibility of any of the 6,800 visas not used by Nationals of Chile or Singapore being added back to the cap at the end of the fiscal year.

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