Greenberg Traurig, LLP  


Immigration News Flash

January 20, 2006

H-1B Cap Reached on January 17, 2006 for 20,000 Degree Exemption Cases

In a press release dated January 18, 2006, USCIS announced January 17, 2006 as its "final receipt date" for the congressionally-mandated limit of 20,000 cap-exempt H-1B cases, which are comprised of those cases in which the foreign worker holds a master's degree or higher from a U.S. educational institution. The limit of 20,000 cases of this type has been met for FY 2006.

Petitions received on January 17, 2006, will be subject to a computer-generated, random selection process designed to select from all petitions received that day the exact number needed in order to reach 20,000.

Unless either the petitioner or the beneficiary qualifies for a separate cap exemption, any petition filed on behalf of a foreign worker with a U.S.-earned master's or higher degree that are received later than January 17, 2006, will be rejected by USCIS. Petitioners may re-submit their petitions after H-1B visas have become available for FY 2007, and for H-1B employees with a start date of October 1, 2006, the earliest date for which a petition may be filed for FY 2007 employment will be April 1, 2006.

Petitions to extend status for current H-1B workers do not count towards the cap, along with petitions to change the terms of employment, to change employers, or to work concurrently in a second H-1B position. Another type of cap-exempt case includes petitions for aliens who will be employed at an institution of higher education, a nonprofit entity related to an institution of higher education, or at a research organization that is either governmental or nonprofit.

In addition, H-2B filings continue to be adjudicated as well. As GT had reported earlier in the year, the H-2B cap is divided between the first and second half of the year to ensure that organizations that normally use this category in the latter part of the year will not be deprived of its use simply due to timing.

Background Information About the Annual H-1B Visa Cap
(excerpt from September 2, 2005 News Flash, "The H-1B Quandry")

The annual cap on the H-1B category dropped to 65,000 beginning with the 2003 fiscal year, after reaching its highest point of 195,000. This drastic drop has impacted not only foreign nationals but the U.S. employers in a number of industries that depend on this additional source of highly skilled labor. For the 2006 fiscal year, H-1B visa numbers for non-exempt, bachelor's degree holders ran out on August 10, 2005. This limit of course applies only to new H-1B visa numbers for foreign nationals who have not held H-1B status. It also applies to foreign nationals who are in H-1B status but whose current H-1B sponsor is an exempt organization (university, nonprofit research organization, etc.).

USCIS is continuing to process H-1B petitions for foreign nationals that are exempt from the general cap allocation. Foreign nationals exempt from the general cap include:

  1. Individuals who already hold H-1B status and are extending their existing status.
  2. Individuals who already hold H-1B status and are changing the terms of employment or employers.
  3. Individuals who will be hired for positions at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

In addition, processing of H-1B petitions for numbers set aside and limited exemptions also continues for Chilean and Singaporean nationals under the additional quota designation under the Free Trade Agreements with those countries.

GT continues its efforts with the Compete American Coalition to craft legislative remedies to alleviate the burden the H-1B cap imposes on U.S. businesses. We urge employers to stay involved and voice their concerns to their representatives.