U.S. Citizenship and Immigration Services (USCIS) announced TODAY, August 12, 2005, that it HAS REACHED THE 65,000 CAP ON H-1B PETITIONS AND WILL NOT ACCEPT ANY ADDITIONAL H-1B PETITIONS FOR THE FISCAL YEAR STARTING 10/01/05. USCIS stated that the LAST DATE IT ACCEPTED H-1B PETITIONS FOR FY2006 WAS August 10, 2005. Any petitions received on August 10, 2005 will be subject to a computer-generated, random selection process. This process will randomly select the exact number of petitions needed to meet the congressionally mandated cap. After random selection, any remaining H-1B petitions that do not receive an FY 2006 number and are not otherwise exempt will be rejected and returned along with the filing fees. Petitions received after August 10, 2005, will be automatically rejected.

Now that the FY 2006 H-1B visas are used up, employers will have to wait to petition workers for employment in the next fiscal year. Congress has determined that 65,000 H-1B visas are issued for each fiscal year, which begins on October 1st. 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, SINGAPORE, AUSTRALIA AND CANADA.

Also note that there are still H-1B visas immediately available for individuals who hold a master's or higher degree from a U.S. university, under the 2004 H-1B Reform Act. This Reform Act allows for 20,000 H-1Bs that are exempt from the 65,000 quota. As of August 3, 2005, 9557 H-1B cases under the Master's category have been approved, and 822 cases are in the pipeline, totaling 10,379 cases.

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