• H-1B Visa Cap Reached For 2006 Federal Fiscal Year
  • August 23, 2005 | Authors: David Z. Izakowitz; Jacquelyn E. Stone
  • Law Firms: McGuireWoods LLP - Charlottesville Office ; McGuireWoods LLP - Richmond Office
  • The U.S. Citizenship & Immigration Services (USCIS) of the Department of Homeland Security announced on August 12, 2005, that it had received enough H-1B petitions to meet the congressionally-mandated cap for federal fiscal year 2006, which begins on October 1, 2005. The USCIS determined that the "final receipt date" is August 10, 2005. Any petition for new employment during federal fiscal year 2006 received after August 10, 2005 will be rejected by the USCIS, unless one of the exemptions described below applies.

    The USCIS also announced that any H-1B petition received on August 10, 2005, will be subject to a computer-generated random selection process to select the exact number of petitions from that day's receipts needed to reach the congressionally-mandated cap. Any remaining H-1B petitions received on that date which are not otherwise exempt will be rejected and returned along with the filing fee.

    The H-1B Visa Reform Act of 2004 exempts 20,000 H-1B petitions per federal fiscal year from the cap for foreign nationals with a U.S.-earned Master's or higher degree. The USCIS announced that for new employment starting in fiscal year 2005, which ends on September 30, 2005, it can still approve approximately 10,000 such petitions. For fiscal year 2006, approximately 12,000 petitions in this category can still be approved.

    In addition, 6,800 H-1B visas per fiscal year are set aside under the U.S.-Chilean and U.S.-Singapore Free Trade Agreements. Similarly, the REAL ID Act of 2005 recently created 10,000 E-3 non-immigrant visas (virtually identical to H-1B visas) for Australians per fiscal year. The caps for these country-specific visas have not been reached.

    Under relevant law, there are also various categories of H-1B petitions that are not subject to the annual numerical cap. Employers can continue to file H-1B petitions in these categories for fiscal years 2005 and 2006. The categories include petitions to:

    • Extend the 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 (unless the change is from a cap-exempt to a cap-subject employer).

    • Allow current H-1B workers to work concurrently in a new H-1B position.

    • Request new employment at an institution of higher education or a related or affiliated non-profit entity, or at a non-profit research organization or a governmental research organization.

    The earliest date for filing a petition for new H-1B employment during federal fiscal year 2007 is April 1, 2006.