*The 35K is an add-on to the normal FY2005 cap of 65K, which was reached before the end of FY2005. **6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY2007.

This update is consistent with earlier predictions that the annual numerical limit of 65,000 will be reached before October 1, 2005. 

The USCIS chart indicates that numbers remain available under the H-1B U.S. advanced degree exemption for both FY2005 and FY2006.  Slightly more than 50% of these 20,000 H-1Bs have been approved/pending for FY2005 and less than 50% have been approved/pending for FY2006.

Once the regular 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 begins on 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 FY2007 cannot be filed prior to April 1, 2006.

 Bear in mind, however, that the annual numerical limit of 65,000 applies to "new" petitions (i.e., those filed on behalf of prospective specialty occupation professionals accorded H-1B nonimmigrant classification for the first time) filed by "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" due to employment with an exempt employer), 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.

¹ 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY 2007  This number does not include the 20,000 H-1B numbers for foreign workers with a master's or higher level degree from a U.S. academic institution.