Builders and Contractors Exchange
Weekly Bulletin: 05 Nov 2004
USCIS Reaches H-1B Cap For Fiscal Year 2005
By: Mara Mijal
On October 1, 2004, the first day of the government's Fiscal Year 2005, the U.S. Citizenship and Immigration Services ("USCIS," formerly the INS) announced that the annual H-1B cap on visas for college-educated foreign professionals had been reached. The current annual H-1B cap, set by Congress, is 65,000, of which 6,800 are set aside for the H-1B program under terms of the U.S.-Chile and U.S-Singapore Free Trade Agreements. The total cap number available for FY 2005 is therefore 58,200. Unless Congress takes action, employers will be unable to hire new H-1B foreign professionals until October 1, 2005--an entire year.
Certain types of H-1B petitions do not count toward the annual cap. For example, petitions for individuals who are currently in H-1B status do not count toward the H-1B cap. Therefore, USCIS will continue to process petitions that are filed to extend the H-1B status of a current H-1B worker; to change the terms of employment for current H-1B workers; to allow an H-1B worker to change employers; or to allow a current H-1B worker to work concurrently in a second H-1B position. In addition, petitions for new H-1B employment are not subject to the annual cap if the foreign worker will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a government or nonprofit research organization.
Despite these exceptions to the cap, U.S. employers are now in a difficult position because they will be generally unable to hire new H-1B workers for an entire year. If your business is adversely affected by the H-1B cap, and your employee is not eligible for an exception to the cap as discussed above, you may want to contact your Congressman and Senators to express support for an increase in the H-1B cap.
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.