By Al Loy
USCIS reaches H-1B cap
Washington, D.C.– (August 12) U.S. Citizenship and ImmigrationServices (USCIS) announced today that it has received enoughH-1B petitions to meet the congressionally mandated cap forfiscal year 2006. USCIS has determined that the "final receiptdate" is August 10, 2005. Any petitions received on that datewill be subject to the random selection process described below.USCIS will reject any petitions that are subject to the FY 2006annual cap and received after the “final receipt date.”Additional information regarding the specific number of H-1Bpetitions processed is available at:
Cap and Set Asides. Congress has established an annualH-1B cap of 65,000. Of that number, 6,800 are set aside for theH-1B1 program under terms of the U.S.-Chile and U.S.-SingaporeFree Trade Agreements. The total H-1B cap number available forFY 2006 is therefore 58,200. The law provides that any of theunused Chile/Singapore numbers be reallocated back to the FY2006 H-1B cap. These unused numbers will be made available onOctober 1, 2006, the start of FY 2007. The law authorizes USCISto make such unused numbers available within the first 45 daysof FY 2007 to aliens who had applied for such visas during FY2006. At that time, USCIS will announce how many Chile/Singaporenumbers went unused and can be reallocated. USCIS will announcethe process for distributing any reallocated numbers in a futurepress release.
Cap Procedures. USCIS has implemented the followingprocess for FY 2006 H-1B filings in accordance with theprocedures announced in the Federal Register at 70 FR 23775(Allocation of Additional H-1B Visas Created by the H-1B VisaReform Act of 2004):
• USCIS has closely monitored FY2006 H-1B filings and usedprojections to determine the number of petitions necessary toreach the congressionally mandated cap. • Having determined thatthe numerical limits have been exceeded, USCIS will identifythose H-1B petitions seeking an FY 2006 number that werereceived on the date that USCIS received the number of petitionsnecessary to meet the cap (the “final receipt date”). • Forpetitions received on the “final receipt date,” USCIS will applya computer-generated random selection process. This process willrandomly select the exact number of petitions from the day’sreceipts needed to meet the congressionally mandated cap. •After random selection, any remaining H-1B petitions that do notreceive an FY 2006 number and are not otherwise exempt will berejected and returned along with the filing fee(s). •Petitioners may re-submit their petitions when H-1B visas becomeavailable for FY 2007. • The earliest date for which apetitioner may file a petition requesting FY 2007 H-1Bemployment with an employment start date of October 1, 2006, isApril 1, 2006. Current H-1B Workers. Petitions forcurrent H-1B workers do not count towards the congressionallymandated H-1B cap. Accordingly, USCIS will continue to processpetitions filed to:
• Extend the amount of time a current H-1B worker may remain inthe United States. • Change the terms of employment for currentH-1B workers. • Allow current H-1B workers to change employers.• Allow current H-1B workers to work concurrently in a secondH-1B position.
Cap-Exempt Petitions. As directed by the H-1B Visa ReformAct of 2004, USCIS treats as exempt from the cap for any fiscalyear the first 20,000 H-1B petitions reflecting an alienbeneficiary with a U.S.-earned master's or higher degree. For FY2005 and 2006 USCIS has now received approximately 10,000 and8,000 of such petitions, respectively. USCIS also notes thatpetitions for new H-1B employment are not subject to the annualcap at all if the alien will be employed at an institution ofhigher education or a related or affiliated nonprofit entity, orat a nonprofit research organization or a governmental researchorganization. Thus, petitions for these exempt H-1B categoriesmay still be filed for work start dates in FY 2005 or 2006.
H-1B in General. The H-1B visa program is utilized by some U.S.businesses to employ foreign workers in specialty occupationsthat require theoretical or technical expertise in a specializedfield, such as scientists, engineers, or computer programmers.As part of the H-1B program, the Department of Homeland Security(DHS) requires U.S. employers to meet specific labor conditionsto ensure that American workers are not adversely impacted,while the Department of Labor’s Wage and Hour Divisionsafeguards the treatment and compensation of H-1B workers.
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