Cap Reached on H-1B Visas Before Beginning of FY 2006

Posted: August 15, 2005

Global Immigration

The United States Citizenship and Immigration Services (USCIS) announced on August 12 that it has received enough H-1B petitions to meet the H-1B cap of 58,200 for Fiscal Year 2006 (beginning on October 1, 2005). USCIS has determined that the "final receipt date" for H-1B visa petitions is August 10, 2005. Any petitions received on that date will go through a random selection process. USCIS will reject any petitions that are subject to the FY 2006 annual cap and received after August 10, 2005.

The announcement came as a surprise, as USCIS had indicated earlier in the week that it still had approximately 7,000 FY 2006 H-1B numbers available. This is the first time that the H-1B cap has been reached before the beginning of the fiscal year. In the current fiscal year ending on September 30, 2005, the H-1B cap was reached on the very first day of the fiscal year, on October 1, 2004.

Any of the 6,800 H-1B1 visas set aside under the U.S.-Chile and U.S.-Singapore Free Trade Agreements for FY 2005 which remain unused will be reallocated to the FY 2006 H-1B pool after October 1, 2005. USCIS has not yet announced the procedures under which these visas will be distributed.

USCIS also announced that approximately 10,000 FY 2005 and 12,000 FY 2006 H-1B visas remain available to graduates of U.S. universities holding a master's or higher degree under the H-1B Visa Reform Act of 2004 set-aside for advanced degree holders.

Petitioners for current holders of H-1B visas are not affected by the cap. USCIS will continue to process petitions to:

Extend the stay of current H-1B holders;
Change the terms of employment of current H-1B holders;
Allow current H-1B holders to change employers unless the change involves a switch from a cap-exempt to a non-exempt employer; and
Allow current H-1B holders to obtain concurrent employment authorization with another employer.

Attached is USCIS press release. Please contact your immigration counsel to discuss whether your case is subject to the H-1B cap issues and, if so, to suggest alternative visa options, if any.

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USCIS Press Release [44 KB]