USCIS Reaches H-1B Cap for FY 2005 October 5, 2004 On October 1, 2004, the first day of the federal government’s new fiscal year (FY 2005), U.S. Citizenship and Immigration Services (USCIS) announced that the FY 2005 annual cap on H-1B visas was reached, and that any cap-subject petitions received after the close of business on October 1, 2004 would be returned. As a result of this development, • • • • USCIS will continue to process all petitions filed for first-time employment received by the end of business, October 1, 2004; USCIS will return all petitions and filing fees for first-time employment subject to the annual cap received after the end of business on October 1, 2004; Petitioners may resubmit their petitions when H-1B visas become available for FY 2006; The earliest date a petitioner may file a petition requesting FY 2006 H-1B employment with an employment start date of October 1, 2005, is April 1, 2005.
Petitions for current H-1B workers do not count toward the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to: • • • • Extend the amount of time a current H-1B worker may remain in the United States (extensions); Change the terms of employment for current H-1B workers (amendments); Allow current H-1B workers to change employers (portability); Allow current H-1B workers to work concurrently in a second H-1B position.
Certain groups are not subject to the cap. Petitions for new H-1B employment on behalf of the following may be filed at any time because they are not subject to the annual cap: • • The foreign national has held H-1B status within the past six years, and has not departed the United States for more than one year; The foreign national will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization, or at a government research organization.
As a consequence, those most likely subject to the cap include many (but not necessarily all): • Recent university graduates who need to change status from F-1 or J-1 to H-1B; • New hires, in the United States or abroad, who are not already in H-1B status and are not in one of the cap-exempt groups. The number of new visas available in the H-1B program is limited by Congress to an annual cap of 65,000, of which 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.Singapore Free Trade Agreements. The total H-1B cap number available for FY 2005 is therefore 58,200. USCIS has factored into its count of petitions subject to the FY 2005 cap the number of Chile/Singapore set-asides that were unused in FY 2004 and any other cases that can be counted against the previous fiscal year’s H-1B cap rather than the FY 2005 cap. The October 1, 2004 announcement that USCIS has received enough petitions to reach the limit for FY 2005 means that USCIS will not accept any new H-1B petitions that are subject to the FY 2005 annual cap. This applies to petitions filed through premium processing as well. For more information, please contact your Morgan Lewis attorney, or one of the contacts listed below:
Washington, D.C. Eleanor Pelta Eric S. Bord Madeline Fain Ellis
Managing Director Director Director
202.739.5050 202.739.6040 202.739.5045
epelta@morganlewis.com ebord@morganlewis.com mellis@morganlewis.com