Fiscal Year 2006 Cap of 20,000 H-1B Visa Numbers Set Aside for Post-Graduates Reached

January 20, 2006

U.S. Citizenship and Immigration Services (USCIS) announced on January 18, 2006, that the Fiscal Year 2006 ("FY 2006") cap of 20,000 H-1B visa numbers set aside for individuals who hold a U.S.-earned master's or higher degree was reached on January 17, 2006.  As a result, USCIS will not accept petitions that fall under this category after January 17, 2006, and petitions received on January 17, 2006, will be subject to a computer-generated selection process that randomly selects the exact number of petitions needed to meet the Congressionally-mandated cap.  After random selection, any remaining petitions that do not receive an FY 2006 number will be rejected and returned along with the filing fees.  Petitions received after January 17, 2006, will be automatically rejected.

Now that the FY 2006 H-1B visas for post-graduate workers are used up, employers will have to wait to petition workers for employment until the next fiscal year, which will begin on October 1, 2006.  An employer may petition a worker up to six months prior to the requested date of employment, provided visas have become or are available.  Petitions that are returned by USCIS may be re-filed on April 1, 2006, provided the work start date is on or after October 1, 2006.  (April 1, 2006 is the earliest date USCIS will accept petitions that are subject to the cap for FY 2007, which starts October 1, 2006, and ends September 30, 2007).

Not all H-1B petitions are subject to the cap.  H-1B extensions, amendments, concurrent H-1B positions, and H-1B transfers from one company to another are not affected by the cap.  Also unaffected are persons who are exempt from the cap, such as persons seeking employment through institutions of higher education, nonprofit research organizations, and government research organizations.  In addition, there are special provisions for temporary workers from Chile and Singapore.

If you have concerns about the timing and filing of you H-1B petition or are thinking about filing an H-1B petition in the future, please contact us to discuss strategies and alternatives.

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