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USCIS Reaches H-1B Exemption Cap for Fiscal Year 2006

By William J. Manning and Sean G. Hanagan
  • January 19, 2006

The United States Citizenship and Immigration Services (USCIS) announced on January 18, 2006 that it has received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations for foreign workers with a U.S.-earned master's or higher degree.  Under the H-1B Visa Reform Act of 2004, the number of aliens exempted from the H-1B cap on this basis may not exceed 20,000 per fiscal year. The "final receipt date" for these 20,000 cap-exempt H-1B petitions is January 17, 2006.  Any petitions received on that date will go through a random selection process.  USCIS will reject any petitions requesting a foreign worker with a U.S.-earned master's or higher degree received after the "receipt date" unless the employer petitioner or employee is eligible for a separate cap exemption.

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

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

USCIS will also continue to accept the following exempt petitions for new H-1B employment filed by or for:

  1. An institution of higher education; 
  2. A nonprofit organization or entity related to or affiliated with an institution of higher education;
  3. A nonprofit research organization or governmental research organization; and 
  4. A J-1 physician who received a Conrad waiver of the 2-year foreign residency requirement.

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.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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