On August 12, 2005, the USCIS issued a
notice indicating that there are now sufficient
cap-subject H-1Bs in the pipeline to fill the Fiscal
Year 2006 quota. The fiscal year starts on October 1,
2005. Any petitions received after August 10, 2005, will
be rejected. Any petitions received on August 10 will be
subject to a "random selection process."
The regular cap impacts individuals who do NOT have U.S.
master's degrees and who are not already in H-1B status
or were not previously in H-1B status. This cap does NOT
impact individuals in H-1B status who are transferring
to a new H-1B employer unless their previous H-1B was
sponsored by a cap-exempt employer (university or
J&H is reviewing all impacted cases and will contact
petitioners and foreign nationals as quickly as
possible, so as to discuss the implications of the cap
The following information is from the USCIS notice:
Cap and Set Asides.
Congress has established an annual H-1B cap of 65,000.
Of that number, 6,800 are set aside for the H-1B1
program under terms of the U.S.-Chile and U.S.-Singapore
Free Trade Agreements. The total H-1B cap number
available for FY 2006 is therefore 58,200. The law
provides that any of the unused Chile/Singapore numbers
be reallocated back to the FY 2006 H-1B cap. These
unused numbers will be made available on October 1,
2006, the start of FY 2007. The law authorizes USCIS to
make such unused numbers available within the first 45
days of FY 2007 to aliens who had applied for such visas
during FY 2006. At that time, USCIS will announce how
many Chile/Singapore numbers went unused and can be
reallocated. USCIS will announce the process for
distributing any reallocated numbers in a future press
USCIS has implemented the following process for FY 2006
H-1B filings in accordance with the procedures announced
in the Federal Register at 70 FR 23775
(Allocation of Additional H-1B Visas Created by the
H-1B Visa Reform Act of 2004):
USCIS has closely monitored FY2006 H-1B filings and
used projections to determine the number of petitions
necessary to reach the congressionally mandated cap.
Having determined that the numerical limits have been
exceeded, USCIS will identify those H-1B petitions
seeking an FY 2006 number that were received on the date
that USCIS received the number of petitions necessary to
meet the cap (the "final receipt date").
For petitions received on the "final receipt date,"
USCIS will apply a computer-generated random selection
process. This process will randomly select the exact
number of petitions from the day's receipts needed to
meet the congressionally mandated cap.
After random selection, any remaining H-1B petitions
that do not receive an FY 2006 number and are not
otherwise exempt will be rejected and returned along
with the filing fee(s).
Petitioners may re-submit their petitions when H-1B
visas become available for FY 2007.
The earliest date for which a petitioner may file a
petition requesting FY 2007 H-1B employment with an
employment start date of October 1, 2006, is April 1,
Current H-1B Workers.
Petitions for current H-1B workers do not count towards
the congressionally mandated H-1B cap. Accordingly,
USCIS will continue to process petitions filed to:
Extend the amount of time a current H-1B worker may
remain in the United States.
Change the terms of employment for current H-1B
Allow current H-1B workers to change employers.
Allow current H-1B workers to work concurrently in a
second H-1B position.
As directed by the H-1B Visa Reform Act of 2004, USCIS
treats as exempt from the cap for any fiscal year the
first 20,000 H-1B petitions reflecting an alien
beneficiary with a U.S.-earned master's or higher
degree. For FY 2005 and 2006 USCIS has now received
approximately 10,000 and 8,000 of such petitions,
respectively. USCIS also notes that petitions for new
H-1B employment are not subject to the annual cap at all
if the alien will be employed at an institution of
higher education or a related or affiliated nonprofit
entity, or at a nonprofit research organization or a
governmental research organization. Thus, petitions for
these exempt H-1B categories may still be filed for work
start dates in FY 2005 or 2006.
H-1B in General.
The H-1B visa program is utilized by some U.S.
businesses to employ foreign workers in specialty
occupations that require theoretical or technical
expertise in a specialized field, such as scientists,
engineers, or computer programmers. As part of the H-1B
program, the Department of Homeland Security (DHS)
requires U.S. employers to meet specific labor
conditions to ensure that American workers are not
adversely impacted, while the Department of Labor's Wage
and Hour Division safeguards the treatment and
compensation of H-1B workers.