According to the United States Citizenship and Immigration Services (USCIS), H-1B numbers for Fiscal Year 2006 and FY2005 H-1B numbers for those holding a U.S. Master's or higher degree) remain available as of this writing.

Unofficial reports from USCIS indicate that H-1B petitions have in fact come in more slowly than originally expected. All the same, USCIS continues to predict that the FY2006 H-1B annual numerical limit (set at 65,000) will be reached before October 1, 2005. No prediction was made as to whether the extra 20,000 FY2005 H-1B numbers for U.S. master's or higher degree holders will be reached before the end of this fiscal year.

Once the FY2006 cap is reached, no new cap-subject petitions may be approved with a start date prior to the next government fiscal year, FY2007, which is October 1, 2006. Further, as new H-1B visa petitions may not be filed earlier than six months prior to the requested start date, H-1B petitions for the fiscal year commencing October 1, 2006 cannot be filed prior to April 1, 2006.

However, bear in mind that the annual numerical limit of 65,000 mainly applies to "new" petitions (i.e., those filed on behalf of prospective specialty occupation professionals who are being accorded H-1B nonimmigrant classification for the first time) for "non-exempt" employers.

Common examples of new H-1B petitions are those filed on behalf of individuals who are presently residing abroad and who will be entering the U.S. to commence H-1B employment, or H-1B petitions filed for those individuals who are in the U.S. in a different nonimmigrant status (i.e., F-1 student, J-1 exchange visitor).

Many H-1B petitions will be unaffected by the annual numerical limit. For example, extensions of H-1B stay with the same employer, H-1B petitions filed by a new employer for an individual already in H-1B status (unless the individual was never issued an H-1B "number"), amended H-1B petitions filed because of changes in job duties/job site, and petitions for concurrent H-1B employment are all exempt from the annual H-1B cap. Also "exempt" are certain H-1B employers, including nonprofit and governmental research organizations, academic institutions, and their affiliated nonprofit organizations.

Jackson & Hertogs will continue to provide updates on the availability of H-1B numbers as news develops.

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