H-1b Cap Looming Closer

The U.S. Citizenship and Immigration Services (“CIS”) is expected to announce within the next four to six weeks (by the end of December or early January) that the cap has been reached for Fiscal Year 2004 (October 1, 2003 to September 30, 2004). 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, should act immediately in order to obtain the H-1B visa. Congress is contemplating legislation to address the cap issues, but we are a long way from relief.

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