On August 12, 2005, the USCIS issued a notice indicating that there are now sufficient cap-subject H-1Bs in the pipeline to fill the Fiscal Year 2006 quota. The fiscal year starts on October 1, 2005. Any petitions received after August 10, 2005, will be rejected. Any petitions received on August 10 will be subject to a "random selection process."

The regular cap impacts individuals who do NOT have U.S. master's degrees and who are not already in H-1B status or were not previously in H-1B status. This cap does NOT impact individuals in H-1B status who are transferring to a new H-1B employer unless their previous H-1B was sponsored by a cap-exempt employer (university or research institute).

J&H is reviewing all impacted cases and will contact petitioners and foreign nationals as quickly as possible, so as to discuss the implications of the cap being reached.

The following information is from the USCIS notice:

Cap and Set Asides.

Congress has established an annual H-1B cap of 65,000. Of that number, 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 2006 is therefore 58,200. The law provides that any of the unused Chile/Singapore numbers be reallocated back to the FY 2006 H-1B cap. These unused numbers will be made available on October 1, 2006, the start of FY 2007. The law authorizes USCIS to make such unused numbers available within the first 45 days of FY 2007 to aliens who had applied for such visas during FY 2006. At that time, USCIS will announce how many Chile/Singapore numbers went unused and can be reallocated. USCIS will announce the process for distributing any reallocated numbers in a future press release.

Cap Procedures.

USCIS has implemented the following process for FY 2006 H-1B filings in accordance with the procedures announced in the Federal Register at 70 FR 23775 (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004):

• USCIS has closely monitored FY2006 H-1B filings and used projections to determine the number of petitions necessary to reach the congressionally mandated cap.
• Having determined that the numerical limits have been exceeded, USCIS will identify those H-1B petitions seeking an FY 2006 number that were received on the date that USCIS received the number of petitions necessary to meet the cap (the "final receipt date").
• For petitions received on the "final receipt date," USCIS will apply a computer-generated random selection process. This process will randomly select the exact number of petitions from the day's receipts needed to meet the congressionally mandated cap.
• After random selection, any remaining H-1B petitions that do not receive an FY 2006 number and are not otherwise exempt will be rejected and returned along with the filing fee(s).
• Petitioners may re-submit their petitions when H-1B visas become available for FY 2007.
• The earliest date for which a petitioner may file a petition requesting FY 2007 H-1B employment with an employment start date of October 1, 2006, is April 1, 2006.

Current H-1B Workers.

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

Cap-Exempt Petitions.

H-1B in General.

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