On June 24, at the American Immigration Lawyers
Association (AILA) Annual Conference in Salt Lake City,
William Yates, Associate Director of Operations for U.S.
Citizenship and Immigration Services (USCIS), announced
that USCIS had received approximately 8,300 H-1B petitions
that will be counted against the additional 20,000 H-1Bs
for FY2005 that are reserved for holders of U.S.
advanced degrees. The 8,300 includes both approved
petitions, and petitions currently pending with USCIS.
This means that approximately 11,700 advanced degree
H-1Bs are still available during this fiscal year;
however, only persons who have been awarded an advanced
degree from a U.S. college or university are eligible
for these visas.
Mr. Yates also announced that for FY2006, USCIS has
received approximately 27,300 petitions for the annual
numerical limit of 65,0001
traditional H-1B visa numbers (those open to all
qualified H-1B nonimmigrants), and an additional 5,500
H-1B petitions for the annual limit of 20,000 H-1Bs
reserved for holders of U.S. advanced degrees. Mr.
Yates did not offer any prediction as to when the H-1B
cap would be reached for either FY2005 or FY2006 H-1B
Readers will note that USCIS is now maintaining two H-1B
visa counts, one for the general 65,000 H-1B numbers,
and another for the 20,000 H-1B numbers that are
reserved for holders of U.S. advanced degrees.
Based on petitions received by USCIS to date, the general
H-1B numbers for FY2006 will likely be exhausted before
the advanced degree H-1B numbers.
Once the FY2006 cap is reached, no new cap-subject
petitions may be approved with a start date prior to the
first day of the next government fiscal year, FY2007,
which is October 1, 2006. Further, as new H-1B visa
petitions may not be filed earlier than six months prior
to the requested start date, H-1B petitions for FY2007
cannot be filed prior to April 1, 2006.
However, the annual numerical limit of 65,000 mainly
applies to "new" petitions (i.e., those filed on 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 H-1B petitions filed for those
individuals who are in the U.S. in a different
nonimmigrant status (i.e., F-1 student, J-1 exchange
Many H-1B petitions will be unaffected by the annual
numerical limit. For example, extensions of H-1B stay
with the same employer, change of employer H-1B
petitions filed by a new employer for an individual
already in H-1B status (unless the individual was never
issued an H-1B "number"), amended H-1B petitions filed
because of changes in job duties/job site, and petitions
for concurrent H-1B employment are all exempt from the
annual H-1B cap. Also "exempt" are certain H-1B
employers, including nonprofit and governmental research
organizations, academic institutions, and their
affiliated nonprofit organizations.
Jackson & Hertogs will continue to provide updates on
the availability of H-1B numbers as news develops.
 Please note that the
65,000 limit is reduced annually by 6800 based on
Free Trade agreements established with Chile and
Singapore. During the first 45 days of the fiscal
year, any of these unused reserved visas are added
back to the 65,000 cap. [return]