December 17, 2003

H-1B Cap Looming Closer?

It has been reported that the U.S. Citizenship and Immigration Services Bureau (“CIS”) is expected to announce within the next four to six weeks that the cap has been reached for Fiscal Year 2004 (October 1, 2003 to September 30, 2004). However, USCIS Deputy Director Bill Yates has informed the American Immigration Lawyers Association that "We are not near the cap at this time." Employers, however, should consider that the cap will be reached in the next few months at the latest, and if filings increase (which they are sure to do in response to these widely-circulated reports), the cap could be reached as early as it has been projected--in the January time frame. Once the cap has been met, no more H-1B cap cases will be accepted during this fiscal year. Official announcements on the cap will be published in the Federal Register notices.

On October 1, 2003, the H-1B cap reverted back to 65,000 from 195,000. This is a huge reduction in availability of the H-1B program for the employment of foreign nationals on a temporary basis in a professional occupation. For the last four years the cap has ranged from 107,500 to as high as 195,000 between FY 1999 and FY 2002. Generally an H-1B approval counts against the cap when the foreign national has not been in H-1B status (with exceptions of course). Initial H-1B petitions for employment with universities and non-profit research institutions are not subject to the cap. Employers with foreign students working pursuant to practical training or who plan to bring foreign nationals into the U.S. for an initial period during this fiscal year should take such reports into consideration when planning their ability to obtain H-1B visa status.

Congress is contemplating legislation to address the cap issues, but it is unlikely that any legislation will be passed until well after the cap is reached this fiscal year. Greenberg Traurig will continue to provide you with the latest updates on the cap issue as further information becomes available.