H-1B Advanced Degree Cap Figures for FY2007 Exceed 17,000, Rapidly Approaching Cap of 20,000

On July 19, 2006, USCIS updated the current cap count with new data gathered as of July 18. The number of approved and receipted pending petitions has now reached 16,991. Approximately 360 H-1B Advanced Degree petitions have been received but have not yet been data-entered and receipted. As of July 19, the combined approximate total is 17,351.

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Current Cap Count for Non-Immigrant Worker Visas For Fiscal Year 2007

What is a “Cap”?

The word “Cap” refers to annual numerical limitations set by Congress on the numbers of workers authorized to be admitted on different types of visas or authorized to change status if already in the United States.

H-1B

Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes fashion models. The current annual cap on the H-1B category is 65,000.

H-1B Advanced Degree Exemption

The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The Act also makes available 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution.

	Cap	Beneficiaries Approved	Beneficiaries Pending	Beneficiary Target 1	Total	Date of Last Count
H-1B	58,200 2	------	------	------	Cap Reached	5/26/2006
H-1B Advanced Degree Exemption	20,000	5,943	11,505	21,000	16,991	7/18/20063
H-1B (FY 06)	58,200	------	------	------	Cap Reached	8/10/2005
H-1B Advanced Degree Exemption (FY 06)	20,000	------	------	------	Cap Reached	1/17/2006

1 Refers to the estimated numbers of beneficiary applications needed to reach the cap, with an allowance for denials and revocations. Each target is subject to revision later in the cap cycle as more petitions are processed.
2 6,800 visas are set aside during the fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can be made available for H-1B use with start dates beginning on October 1, 2006, the start of FY 2007. USCIS has added the projected number of unused H-1B1 Chile/Singapore visas to the FY 2007 H-1B cap as announced in the H-1B Press Release, dated June 1, 2006.
3 The numbers on the table for H-1B Advanced Degree Exemption include only receipted petitions. As of July 18, 2006, an estimated 360 I-129 H-1B petitions seeking the Advanced Degree exemption had yet to be receipted. Several hundred of these petitions were received prior to July 18, 2006.

H-1B1

An H-1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The law defines specialty occupation as a job that requires a bachelor’s degree or higher. The beneficiary must have a bachelor’s degree relating to the job offer. Through May 2006, 301 H-1B1s counted against the FY 2006 H-1B1 cap. The combined statutory limit is 6,800 per year. Based on the H-1B1 usage to date, USCIS has reasonably projected that 700 H-1B1 visa numbers will be used in FY 2006. The projected number of 6,100 unused H-1B1 visas for FY 2006 has been incorporated and applied to the FY 2007 H-1B cap.

H-2B

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

On May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). The SOS Act allowed USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately:

For FY 2005 and 2006: All “returning workers,” meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means:

• In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004.


• In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005.

If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

What is the H-2B numerical limit set by Congress?

The numerical limit refers to the number of visas issued by Department of State (DOS) to first-time workers and to the number of persons changing to H-2B status determined by USCIS. For FY 2006, the total annual numerical limit or cap is 66,000. Approximately 99 percent of the cap is made up of visas.

Why does USCIS authorize more H-2B workers than the statutory limit?

Employers often decide after submitting a H-2B petition that the workers are no longer needed. However, USCIS still processes these petitions (notification from employers that workers are no longer needed is rare) and sends the approved petitions to DOS for consular processing. If the employers no longer request these workers, DOS will not issue visa for these workers. As a result, workers authorized to work by USCIS will exceed the number of visas issued---the basis of the statutory limit. Another factor is that DOS denies some visas even though USCIS has approved petitions for these workers.

	Cap	Beneficiaries Approved	Beneficiaries Pending	Beneficiaries Target 1	Total	Date of Last Count
H-2B 1st Half	33,000	------	------	------	Target Reached	12/15/2005
H-2B 2nd Half	33,000 2	------	------	------	Target Reached	4/4/2006
H-2B Annual (FY 06)	66,000 3	------	------	------	Target Reached	4/4/2006

1 Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations.
2 A shortfall in the 1st half would be made up in the 2nd half.
3 Visas issued to 1st-time beneficiaries plus 1st-time beneficiaries changing status already in the United States.

H-3

The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training). The training may be provided by a business entity, academic, or vocational institute. The H-3 nonimmigrant visa category also includes aliens who are coming temporarily to the U.S. to participate in a special education training program for children with physical, mental, or emotional disabilities. There is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of May 23, 2006, a total of 6 of these H-3 visas had been approved in FY 2006.