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H-1B CAP REACHED: What’s Next?

The U.S. Citizenship and Immigration Services (USCIS) announced recently the cap for H1B petitions for fiscal year 2007 (FY 2007) had been reached as of May 26, 2006. The “final receipt date” for H-1B petitions subject to the FY 2007 annual cap was May 26, 2006. The H-1B petitions received on that date will be put in a random selection process. Lucky applicants whose petitions are selected by the random process will continue with the application process; the rest of the applications will be returned without further processing.

H1B Background & Annual Cap
 

The H1B visa classification was created by the Immigration Act of 1990 (IMMACT90) for foreign workers in “specialty occupations” and for fashion models of “distinguished merit and ability.” The job offered must be a specialty occupation which would normally require a bachelor’s degree. The employer must also be willing to pay at least the prevailing wage for that occupation.

IMMACT90 imposed an annual cap of 65,000 on the issuance of H1B visas. The cap was first reached in FY1997 and met again in the subsequent years. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), signed into law, on October 21, 1998, raised the annual cap to 115,000 for FY1999 and FY2000, and to 195,000 for FY 2001 through 2003. However, the original cap of 65,000 was reverted for FY2004. On the first day of FY2004, the 65,000 was already met. For FY2005, the cap was already met even before the beginning of the fiscal year. For FY 2006, the cap was reached in August of 2005. This year, the cap was reached in less than 60 days, despite that fact that the USCIS had added back 6,100 unused FY 2006 H1B visas (from the Chile/Singapore H1B1 program).

Alternatives

For those individuals who are not able to secure an H1B visa number, there are other alternatives. First of all, there are 20,000 additional H1B visa quota for holders of advanced degrees earned in the U.S. under the H1B Visa Reform Act of 2004. As of last week, USCIS received approximately 5,830 petitions only for this category of applications. Secondly, certain H-1B employment is exempt from the annual cap if the employers are institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, petitions for these exempt H-1B categories may still be filed at any time. Thirdly, petitions filed on behalf of current H1B workers do not count towards the cap; these include extension of, changes in, and concurrent employment of current H1B status. Finally, there are also proposed changes to the H-1B program in the comprehensive immigration reform bill passed by the Senate on May 25, which would significantly alleviate the H1B deficiency problem. Some of these changes include: (1) Raise the 65,000 H-1B numerical cap to 115,000; (2) Make the 20,000 exempted quota applicable advanced degrees earned from foreign institutions of higher learning; (3) allow board-certified physicians who have completed residencies and/or fellowships in the to obtain H-1B status without regard to the numerical caps; and (4) exempt all non-profit organizations from the H1B cap. Please note that these are all proposals only and have not been signed into law yet.

Note:  All discussions posted on this website are meant to be general information only and do not constitute legal advice.  Immigration laws and regulations change on a daily basis.  Any and all information posted on this website could become outdated soon after publication.  Please also see our DISCLAIMERS.

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