FY 2006 H-1B Cap Reached

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September 12, 2005

U.S. Citizenship and Immigration Services (“USCIS”) announced that as of August 10, 2005 it had received enough H-1B petition filings to reach the Congressionally mandated cap for the issuance of new H-1B visas for FY 2006 (October 1, 2005 to September 30, 2006) to individuals who did not graduate with a Master’s or higher degree from a U.S. institution of higher education. Any petition received for new H-1B employment after August 10, 2005 will be returned along with the filing fee submitted to the petitioner. Because USCIS believes that it had received more petitions than it could approve by the time that it announced the reaching of the annual H-1B cap on August 12, 2005, all petitions received on August 10, 2005 will be subject to a computer-generated random selection process where some of the petitions received on that date will randomly rejected so that the numerical cap is not exceeded.

The August 10, 2005 reaching of the FY 2006 H-1B cap does not affect the following:

• The cap does not apply to H-1B petitions filed to extend the amount of time a current H-1B worker may remain in the United States.
• The cap does not apply to individuals who have already been counted toward an H-1B cap within the past six years unless they would be eligible for another full six years of admission (i.e., unless they have been outside the U.S. for at least one full year since they last held H-1B status).
• The cap does not apply to H-1B petitions filed for employment at an institution of higher education or a related or affiliated nonprofit entity, or for employment at a nonprofit research organization or a governmental research organization.
• The cap does not apply to H-1B petitions filed to change the terms of employment for current H-1B workers.
• The cap does not apply to H-1B petitions filed to allow current H- 1B workers to change employers.
• The cap does not apply to H-1B petitions filed to allow current H-1B workers to work concurrently in a second H-1B position.
• The cap does not currently affect new H-1B petitions filed for workers from Singapore or Chile.
• The cap does not apply to H-1B petitions for J-1 foreign medical graduates who have received a “Conrad 30” waiver of the two-year foreign residence requirement based on a commitment to provide three years of medical service in a federally designated medically underserved area.
• The regular 65,000 cap does not currently affect individuals who possess a Master’s degree or higher from a U.S. institution of higher education. The first 20,000 petitions received each fiscal year from individuals with U.S.-earned Master’s or higher degrees are exempt from the 65,000 cap. Once all of the 20,000 H-1B numbers for holders of U.S.-earned Master’s or higher degrees have been issued by USCIS, petitions for individuals holding U.S. advanced degrees are subject to the regular 65,000 cap.

The earliest date on which petitioners may once again file H-1B petitions for new, regular, nonexempt H-1B visas is April 1, 2006 for an October 1, 2006 start date.

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The current annual cap for H-1B visas is 65,000, of which 6,800 are set aside annually for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Any unused Chile/Singapore numbers are reallocated back to the regular H-1B cap for that fiscal year. The unused Chile/Singapore numbers for FY 2006 will be available starting on October 1, 2006 and for the next 45 days until all of the numbers are applied to petitioners who filed for regular H- 1B numbers during FY 2006.

If you would like to discuss these matters further or have any questions about this update, please contact your Quarles & Brady LLP immigration lawyer directly or contact one through www.quarles.com. Even if you or your employees seem to be affected by the H-1B cap, there are other options that we can usually explore to meet your business needs.

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