USCIS Reaches H-1B (Non-Advanced Degree) Cap for FY 2007
Ridgewood , New Jersey - June 2, 2006
The U.S. Department of Homeland Security ("DHS"), Citizenship and Immigration Services ("CIS") announced yesterday that it has received a sufficient number of H-1B petitions to meet the congressionally mandated cap for fiscal year 2007 (FY 2007). The "final receipt date" for H-1B petitions subject to the FY 2007 annual cap was May 26, 2006. Affected H-1B petitions received on that date will be subject to the random selection process (see below). H-1B petitions subject to the FY 2007 annual cap that are received by CIS after the "final receipt date" will be rejected. Additional information regarding the specific number of H-1B petitions processed is available here.
H-1B Overview: U.S. businesses utilize the H-1B program to employ foreign workers in "professional and specialty occupations" that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the DHS and the U.S. Department of Labor ("DOL") require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted. The DOL's Wage and Hour Division safeguards the treatment and compensation of H-1B workers.
Cap and Set Asides: Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H-1B cap." Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are annually set aside for the Chile/Singapore H-1B1 program. As a result of reserving 6,800 H-1B1 visas for FY 2007, the H-1B cap for that fiscal year is 58,200. However, CIS has added back to the H-1B cap 6,100 unused FY 2006 H-1B1 visas, for a total of 64,300 for FY 2007. This allocation of FY 2006 H-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007.
Cap Procedures: In accordance with the procedures announced in the Federal Register at 70 FR 23775 (May 5, 2005) (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004) CIS has implemented the following process for handling H-1B petitions subject to the FY 2007 cap:
- CIS closely monitored FY 2007 H-1B filings and used projections to determine the date on which it received the number of petitions necessary to reach the Congressionally mandated cap.
- CIS determined that the Congressionally mandated cap had been exceeded on May 26, 2006, the "final receipt date."
- CIS will subject H-1B petitions received on the "final receipt date" to a computer-generated random selection process. This process will enable CIS to apply the remaining number of available H-1B visas to petitions received on that day.
- Cap subject H-1B petitions that are not randomly selected in the process described above will be rejected and returned along with the filing fee (s).
- Petitioners may re-submit the petitions when H-1B visas become available for FY 2008.
- The earliest date for which a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007 will (assuming no changes in the law) be April 1, 2007.
Current H-1B Workers: Petitions filed on behalf of current H-1B workers do not count toward the Congressionally mandated H-1B cap. Accordingly, CIS 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 workers.
- Allow current H-1B workers to change employers.
- Allow current H-1B workers to work concurrently in a second H-1B position.
Cap-Exempt Petitions: As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H- 1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees will be exempt from any fiscal year cap on available H-1B visas. For FY 2007, CIS has received approximately 5,830 exempt petitions.
CIS also notes that petitions for new H-1B employment are exempt from the annual cap if the aliens will be employed at 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 be filed for work dates starting in FY 2006 or 2007.
If you, or any member of your staff, should have any questions with regard to the H-1B nonimmigrant visas process or filing a case for a prospective nonimmigrant seeking to avoid the H-1B cap, please e-mail us at info@visaserve.com.
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