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 numbers.

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 visitor).

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.

[1] 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]

© 1999-2012, Jackson & Hertogs - All rights reserved