June 5, 2006

H1b Cap Reached

USCIS announced late last week that it reached the H-1B cap for foreign nationals seeking H-1B status who hold a bachelor’s degree or the equivalent for the new fiscal year 2007 (FY2007) as of May 26, 2006. In fact the agency indicated that all petitions received on May 26, 2006, the “final receipt date”, will be subject to a computer-generated random selection process and many will be returned unadjudicated. Any petitions received after the “final receipt date”, will be rejected and returned along with the filing fee(s). The lag time in the announcement is due to the time it takes the Service Center to in-put data and count the cases.

Unfortunately without Congressional intervention the earliest date to file an H-1B petition for bachelor’s degree holders will be April 1, 2007 with an employment start date of October 1, 2007.

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

• Foreign Nationals who already hold H-1B status and are extending their existing status.
• Foreign Nationals who already hold H-1B status and are changing the terms of employment or employers.
• Foreign Nationals 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. For FY07, USCIS has received approximately 5,830 exempt petitions.

In addition, processing of H-1B petitions for numbers set aside and limited exemptions also continues. These include:

• Chilean and Singaporean nationals under the additional quota designation under the Free Trade Agreements with those countries.
• FY07 H-1B petitions filed on behalf of foreign nationals who have earned a U.S. master’s or higher degree. In this category, USCIS has now indicated that there are just under 14,170 cap numbers for FY07 (employment start date before October 1, 2006) and 20,000 cap numbers for FY07 (employment start date after October 1, 2006).

Greenberg Traurig will continue to monitor the availability of H1B numbers and provide related updates.