The American Immigration Lawyers Association (AILA) has advised that as of August 4, 2004 USCIS had received 40,000 H-1B visa petitions to be counted against the fiscal year 2005 cap of 65,000. Of those 40,000 petitions, 21,000 have been approved and the remainder are in the processing pipeline. Please note that the overall 65,000 H-1B cap is reduced to a total of 58,200 due to the "carve out" of visa numbers under the Free Trade Agreements with Chile and Singapore. While any visas not used under the Free Trade Agreements will be added back in to be used for the current cap, this will not occur until after October 1, 2004.  Any visa petitions approved after the unused numbers are added back will need to be issued by November 15, 2004.

Based on these numbers, there are roughly only 18,200 visas left for the fiscal year that will begin on October 1, 2004.  Once the fiscal year 2005 cap is reached, no new cap-subject petitions may be approved until the next government fiscal year, which will commence on October 1, 2005. As new H-1B visa petitions may not be filed earlier than six months prior to the requested start date, H-1B petitions for the fiscal year commending October 1, 2005 cannot be filed prior to April 1, 2005.

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) for "non-exempt" employers. Common examples of new H-1B petitions are those filed on 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 generally not considered "new" and counted against the cap. "Exempt" employers include nonprofit and governmental research organizations, and academic institutions and their affiliated nonprofit organizations.

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