At 8:00 PM EST, the USCIS announced that on the first day of Fiscal Year 2005, it has received enough H-1B petitions to meet this year's congressionally mandated cap of 65,000 new workers.  After October 1, 2004, USCIS will not accept any new H-1B visa petitions for first-time employment subject to the FY2005 annual cap.

Jackson & Hertogs has been prioritizing H-1B cap cases since April 2004 and cap impacted cases have been treated as urgent.  We do expect that some of the pending cap cases will still be adjudicated; however some will not be adjudicated with a start date for this fiscal year. We will contact clients to discuss affected cases as needed. If you are concerned about a possible H-1B cap situation, please contact your attorney as soon as possible.

The USCIS has indicated that the following procedures will be implemented for the remainder of FY2005:

USCIS will process all petitions filed for first-time employment received by October 1, 2004.  All petitions for first-time employment subject to the cap which are received after the end of business on October 1, 2004, will be returned to the petitioner/attorney along with the filing fees. The petition may be resubmitted when H-1B visa petitions become available for FY2006 (October 1, 2005). The earliest date that a petitioner may file a petition requesting FY2006 H-1B employment with a start date of October 1, 2005, would be April 1, 2005.

Petitions for individuals who are already in H-1B status do not count against the cap and will continue to be accepted and processed by the USCIS. The annual numerical limit of 65,000 only applies to "new" petitions (i.e. those filed in behalf of prospective specialty occupation professionals who are being accorded H-1B nonimmigrant classification for the first time). Common examples are those filed in behalf of individuals who are presently residing abroad and who will be entering the U.S. to commence H-1B employment, or petitions filed for those who are in the U.S. in a different nonimmigrant status (i.e. B-1/B-2 visitor, F-1 student, J-1 exchange visitor). Petitions for extensions of stay with the same employer, H-1B petitions filed by a new employer for an individual who is already in H-1B status, amended H-1B petitions filed because of changes in job duties/job site, and petitions for concurrent H-1B employment are not counted against the cap. Also not counted against the cap are new employment H-1B petitions where the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or government research organization.

The USCIS will also continue to process H-1B1 visa petitions for workers from Singapore and Chile consistent with the Free Trade Agreements entered into with these countries reserving 5,800 visas for nationals of Chile and Singapore from the 65,000 annual limit.

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