This information has been prepared for clients of the Law Offices of Jay I. Solomon.  You are welcome to browse, but should consult your own attorney for legal advice.

Previous H-1b Alerts

An alien who previously had an H-1b within the last six years, and who has not left the U.S. for over a year, is not subject to the "cap.

There are reserved H-1b numbers for people from Singapore and Chile.  If your employee is from Singapore or Chile, H-1b visas should be available well into next fiscal year.

Australians who would qualify for H-1b will often qualify for E-3 visas which are not subject to the same cap.

Canadians and Mexicans may qualify for TN visa status.

Employees of institutions of higher education, and of some non-profits affiliated with institutions of higher education may not be subject to the H-1b cap - until they change employers.  

• - they leave the U.S. for at least a year, in which case the six years starts over - and they must qualify under the cap again, or
  
• - an application for labor certification is filed before the end of their 5th year in H-1b status, and
  
• has not been withdrawn or denied, or
  
• - a preference petition (I-140) has been filed and approved for the alien, and a visa number is not currently available

posted June 12, 2008

H selection over for 2009

The USCIS has announced that all receipts for cap subject H-1b petitions were issued by May 24th, 2008 and that rejected cases would be returned beginning this week.  No cases are being held "in reserve" - however a few cases were pulled as suspected duplicate filings.  About 500 applications are being examined to determine if they are in fact duplicates.  Those applications may still be accepted if it is determined that they are not duplicates.  We have no reason to believe that any applications filed by our office will fall into this category.

We have notified all our clients whose H-1b petitions have been accepted.  We will notify clients as we receive rejected applications. 

posted April 9, 2008

H-1b Cap reached - Master's exemption exhausted

"Random selection" to begin

The USCIS announced yesterday that more than enough filing were received by April 7th to exhaust the H-1b cap as well as the exemption for those with advanced degrees from U.S. Universities.  The next step will be a random selection to determine which applicants will benefit from the U.S. advanced degree exemption.  20,000 applications will be selected from among those claiming the exemption.

After the beneficiaries of the cap exemption are determined, a second random selection will begin to allocate the remainder of the 65,000 H-1b cap.  Applicants who applied for cap exemption and were not selected will have a second chance in the general random selection - unless it was determined that they were not eligible to claim the cap exemption. 

The USCIS is not yet predicting when the random selection will be completed, and has not announced how many applications were received.

See their announcement.

posted February 15, 2008

An alien who previously had an H-1b within the last six years, and who has not left the U.S. for over a year, is not subject to the "cap.

There are reserved H-1b numbers for people from Singapore and Chile.  If your employee is from Singapore or Chile, H-1b visas should be available well into next fiscal year.

Australians who would qualify for H-1b will often qualify for E-3 visas which are not subject to the same cap.

Canadians and Mexicans may qualify for TN visa status.

Employees of institutions of higher education, and of some non-profits affiliated with institutions of higher education may not be subject to the H-1b cap - until they change employers.  

• - they leave the U.S. for at least a year, in which case the six years starts over - and they must qualify under the cap again, or
  
• - an application for labor certification is filed before the end of their 5th year in H-1b status, and
  
• has not been withdrawn or denied, or
  
• - a preference petition (I-140) has been filed and approved for the alien, and a visa number is not currently available.

H-1b cap - what happened?

There were 58,200* cap subject H-1bs available for the "year" beginning on October 1, 2007. ("Fiscal 2008").  There were an additional 20,000 "cap exempt" H-1bs available for those who had received U.S. masters degrees.  Applications for new H-1bs to start on October 1, 2007 could first be accepted on April 2, 2007 - six months in advance.

On the very first day, the USCIS received twice as many applications as there were cap subject H-1bs available.  Cap subject H-1bs ran out the very first day!

The additional 20,000 cap exempt H-1bs lasted a bit longer.  But they were gone by the end of April - the very first month.

*  Although the law allows for 65,000 cap subject H-1bs, that number is reduced by reserved allocations for certain countries, including Singapore and Chile.

USCIS Count - latest (Official USCIS Web site updates)

It's over -

Posted May 4, 2007
USCIS announced today that the Master's cap exemption was exhausted as of April 30th.  No new filings for cap subject Hs until April 2008 - unless the law changes.  USCIS continues to process fee receipts on the 65,000 cap subject petitions.

USCIS is still issuing receipts....expects to finish by May 11th.

Posted April 23, 2006 (and last updated May 2)
We expect USCIS to meet its goal of issuing receipts on all cap subject cases by May 11, 2007.  By  May 17th, all accepted filing fee checks should have been presented for payment.  Some rejected applications have already been returned.  We expect the return of rejected applications to continue beyond May 11.

USCIS reports 19,887 as of April 30th.
USCIS reports 19,673 as of April 26th
Count reaches 19,172 as of April 25
USCIS reports 18,747 as of April 24th!
    (Less than 100 received in 5 days???) 
Count reaches 18,649 as of April 19th.
Count reaches 18,000 on April 18th.  500 per day..... and counting
USCIS Press Release

Please note:  While there are 20,000 applications which may be accepted under the Master's cap exemption, we expect the USCIS to accept more than 20,000 petitions to allow for denials and withdrawals and revocations.  We do not know how many more than 20,000 will be accepted.  (May 1, 2007)

Posted April, 20 2007

USCIS has received about 17,000 petitions towards the 20,000 Masters's cap exemption.  Approx. 4,000 applications were accepted between April 4, 2007 and April 16th.  For most recent announcements see their web site.   

We expect the Master's cap exemption could be reached within the  next two weeks if the current rate continues.   However, we suspect that many of the 12,000 pending petitions will be denied as we have reason to believe that substantial numbers of applications were filed for beneficiaries who do not yet have their Master's degrees, and have not yet completed all requirements.

If USCIS effectively monitors applicants who claim Master's degrees based on false certifications, the cap exemption may stay available through the beginning of May - when real graduations take place.  

Posted April 12, 2007 (reported by AILA)

USCIS Associate Director for Domestic Operations Michael Aytes informed members attending the AILA Texas Chapter Conference in Las Vegas that the H-1B random number generator is being run today, April 12, 2007. Adjudication of non-U.S. Master's degree cap subject H-1B petitions will not begin prior to April 13, 2007. If you receive an approval notice for a non-U.S. Master's degree cap case prior to April 13, 2007, USCIS asks that you verify the approval through the Premium Processing unit which issued the notice or through the National Customer Service Center.

Posted April 11, 2007

Masters H-1b cap still open?

The USCIS announced yesterday that "the cap of 20,000  [for beneficiaries with a U.S. Master's Degree] remains open.  They have determined that 119,193 petitions received on April 2nd and April 3d are subject to the annual 65,000 cap for fiscal 2008, and 12,989 petitions have requested the U.S. Master's Degree exemption.

We caution that the count is not yet complete as we believe USCIS continues to process petitions received in the first days of April.  However, it does appear that the Master's Degree exemption will not be reached for several more days.  Petitions for beneficiaries with U.S. Master's Degrees may still be filed, and may be processed.

Almost Master's Degree....

We have received many calls from students who expect to graduate next month. We know that some petitioners filed applications  filed claiming the cap exemption for students  who had not yet completed their master's degree.  We have been advised that the USCIS will be on the lookout for such cases, and that they will be denied.  

If a student has in fact completed ALL requirements for the degree (coursework, required thesis, fee payments, etc.), and the University is willing to provide a letter stating that the degree has been fully earned and will be unconditionally awarded at a ceremony to take place at a particular future date, then we do suggest claiming the cap exemption.  If there are any conditions on the award of the degree, we do not believe the petition should be filed under the "Master's Cap."

Posted April, 3, 2007

H-1b Cap reached first day...

The USCIS announced today that as 150,000 H-1b petitions had been received and counted by the afternoon of April 2nd.  The cap has been reached.  An additional 20,000 H-1bs are available to those who have US Masters degrees.  We don't know yet if those are also gone.

Any cap subject H-1bs petitions received April 3d or before will be entered into the USCIS database, and enough chosen from among those entered to fill the 2008 cap.  We expect over half of those petitions filed - even the first day - will not be selected under the 2008 cap.  It may be weeks before the selection of the "winners" is made.

We link to the USCIS press release, and we will be posting additional information concerning how to check on your  cases(s). and how to maintain status in light of this event.

posted February 28, 2007

An alien who has had an H-1b within the last six years, and who has not left the U.S. for over a year, is not subject to the "cap.

There are reserved H-1b numbers for people from Singapore and Chile.

Australians who would qualify for H-1b will often qualify for E-3 visas which are not subject to the same cap.

Canadians and Mexicans may qualify for TN visa status

• - they leave the U.S. for at least a year, in which case the six years starts over, or
• - an application for labor certification is filed before the end of their 5th year in H-1b status, and
• has not been withdrawn or denied, or
• - a preference petition (I-140) has been filed and approved for the alien, and a visa number is not currently available

H-1b - News & Analysis

posted 7/20/2006

H-1b still available for those with US Masters Degrees
                .......... but not for long

Citizenship and Immigration Services reports (as of 7/18/2006) that 16,991 applications for the H1b Advanced Degree Exemption have been filed, and another 360 applications have been received,  but not yet entered into their system.  That's about 1700 more than they reported a week earlier.

Employers can still file H-1b petitions for those with advanced degrees from U.S. universities - for now.  We anticipate that the cap will be reached as early as next week, and certainly within the next three weeks.  

H-1b cap reached 2007

posted 6/2/2006

Late on June 1st, the CIS announced that the H-1b cap for fiscal 2007 has been reached as of Friday, May 26, 2006.

What this means.

The CIS will reject H-1b petitions subject to the cap received after May 26, 2006. Applications filed on that date will be subject to a selection lottery. Checks for filing fees will be returned with rejected applications. Refunds will be made by CIS for filing fees accepted in error. Unless Congress provides relief, new applications won't be accepted again until April 1, 2007 for H-1b status to commence on October 1, 2007.

Not everyone is affected by this cutoff:

The cap does not apply to:

- an alien with a US masters degree (20,000 are exempt from the cap - less than 6,000 exempt petitions have been filed)

- an alien who is now working as an H-1b and is seeking to extend status or transfer employers

- an alien who has had an H-1b at anytime within the last six years, and who has not left the US

- aliens who are citizens of Chile or Singapore have "reserved" H-1bs beyond what those countries have required in the past.

- aliens who are to work at a U.S. institute of higher education or an affiliated non profit entity

- aliens who are to work at a nonprofit or governmental research organization

Petitions for other nonimmigrant categories are still available to those who qualify. These include the new E-3 visa - virtually the same qualifications as an H-1b, but limited to citizens of Australia; the TN category for Canadian and Mexican citizens; E visas for citizens of countries with treaties of trade or investment with the U.S.; and L visas for individuals being transferred to the US who have been working abroad for an affiliate, subsidiary, or office of the US employer.

It may not be over yet.......

There is substantial relief for the H-1b cap problem in the immigration bills now being considered by Congress. The bill the Senate recently passed raises the cap to 115,000, and exempts many more applicants from being counted against the cap. 

That the cap was reached in less than two months for a year which won't begin for another four months shows the incredible demand that the US economy has for educated and skilled workers. Rightfully, there will be tremendous pressure on Congress to recognize this as a problem and to do something about it.

You can help! At least contact your elected representative, and let them know how important reform is to you and your company.

We will run out of H-1bs before start of fiscal year

posted 8/5/2005

The CIS has announced that as of July 26, 2005, less than 11,000 cap numbers remain out of the total available of 58,200.  Our experience is that as the limit on the cap approaches, demand accelerates.  We expect all nonexempt cap numbers to be used up well before the start of the fiscal year - possibly before the end of August.  Less than half the available advanced degree exemption numbers have been used, and we expect that H-1bs will continue to be available for those with Masters degrees from U.S. universities through the beginning of the fiscal year, and possibly through the end of the first quarter.

H-1b cap reached on first day of new fiscal year

posted 10/2/2004

The CIS announced at 8 pm on October 1st that the cap had been reached for fiscal 2005.   Cap subject H-1b petitions received after October 1st will be returned without adjudication.

H-1b cap to be reached early

posted 9/7/2004

The CIS has updated its H-1b count - 45,900 cap subject H-1bs for fiscal 2005 as of September 2nd. Almost 6,000 cases were charged to the H-1b cap in August alone.   At this rate, the cap will be reached in November or December - depending on the recapture of unused H-1b numbers pulled out for the new trade agreements with Chile and Singapore.

We might see some relief on the H-1b front - but it is unlikely that anything would be done before the elections in November.

posted 8/25/2005

The CIS announced has announced that as of August 4th, 40,000 cap subject H-1b applications had been approved or were in the pipeline.  There will only be between 55,000 and 60,000 available for the entire fiscal year.  Therefore, expect the 2005 H-1b cap to be reached much earlier than last year.  It will not be a surprise if H-1bs "run out" before the end of November - and possibly before the end of October, 2004.

A flash back: - In 2001 over 200,000 new H-1b petitions were filed.  When the economy improves, where will employers find the skilled workers they need?  If they can't find them in the U.S. - and can't bring them in as H-1bs, will  good new jobs go overseas?  It may already be happening.  

Not enough H's for 2005
posted 4/20/2004

New H-1b applications can be filed now for start in fiscal 2005 (October 1, 2004 and after).  This year we ran out of H-1bs less than five months into the year. Next year, we will run out earlier.

I have heard predictions that we could run out even before the fiscal year begins on October 1st.  I don't think it will be that bad, but if you have identified H-1b employees that you intend to bring on board after October 1st, now is the time to file.

I don't suggest expediting new filings YET - but fully expect that it will be necessary to assure that applications will be adjudicated while H-1b numbers are still available.

H Cap reached in 2004
Posted 2/18/2004

On February 17, 2004, the USCIS announced that enough cases were in the "pipeline" to exceed the H-1b cap for fiscal 2004 - and that any cap subject cases received from February 18, 2004 through March 31, 2004 would be returned. 

What this means to you 

• You can continue to file petitions for aliens already in H-1b status who are changing employer, taking a second job, changing the terms of employment, or extending their stay
  
  
• Petitions for H-1b employment received by USCIS before February 18, 2004 will continue to be processed - until the cap is reached.  It is possible that not all pending petitions will be approved before the cap is reached.
  
  
• Petitions can still be filed for new employment by institutions of higher education, nonprofit research organization and governmental research organizations.
  
  
• There is a different "cap" for Singapore and Chile - and H-1b petitions for individuals from those countries can continue to be filed.
  
  
• You can file petitions for new H-1b employment - subject to the cap - after April 1st by asking for a start date of October 1, 2004, the beginning of the new fiscal year.
  
  
• Individuals who are not able to have an H-1b petition filed on their behalf at this time, and whose current status will expire before October 1, 2004 need to plan on either leaving the U.S., extending their current status if possible,  or finding an alternate status if available.
  
  

What you can do now

If you are an H.R. professional, make sure your managers know that H-1b work authorization cannot be obtained for foreign candidates who need new H-1b sponsorship until October 1, 2004.

If you are an individual who was counting on changing status to H-1b - take steps to make sure you don't violate your status.  Extend your current status, if possible.  Change to another nonimmigrant visa category - if available.   Use your remaining in status time in the U.S. to obtain a job offer with a start date on or after October 1, 2004, and plan on leaving the U.S. and coming back in H-1b status.

Contact Congress - Let your Senators and Representatives know that it is good for your business, good for the economy, and a benefit to the United States to expand the H-1b cap.  If your company has been hurt competitively in the world economy because of the difficulty in hiring and moving specialized international personnel, let the people know who can do something about it - and give them details!

H-1b fee goes down, cap reverts
Posted 10/23/2003

On October 1, 2003, the H-1b "training fee" of  $1,000 expired - and the "cap" reverted to 65,000 from 195,000.  The USCIS reports that 217,340 H-1b petitions were approved in fiscal 2003 - of which 78,000 were counted against the cap.  (Petitions for workers continuing in H-1b employment, and petitions for individuals working for most educational institutions are not counted.)  

H-1b petitions for initial employment dropped for the third year in a row - and are now about half of what they were in the peak year of 2001.

There is a substantial risk that Congress will reinstate the training fee.  We therefore suggest that petitions for H-1b renewals be filed sooner rather than later - they can be filed six months in advance.  We also suggest not waiting to file change of status applications for employees working in F-1 or J-1 classification with practical training.  When the H-1b cap is reached, it will be too late for those workers to change status.

Left over H-1bs in 2003 - We'll run out in 2004

Posted 8/27/2003
As we predicted earlier this year, there is no risk of running out of H-1bs in fiscal 2003 (which ends September 30, 2003).  The USCIS (former INS) has announced that in the first nine months of the year, only 56,986 H-1b petitions were approved against the cap of 195,000. 

Given usage for the first nine months of the year, and the number of pending cases still at USCIS, the total H-1b approvals subject to the annual cap for fiscal 2003, should be less than 75,000.

In the fiscal year which begins October 1st, the cap reverts to 65,000.  Unless demand for new H-1bs drops significantly, the cap will be reached - and it will not be possible to file new H-1bs towards the end of next summer - possibly earlier.

We continue to advise filing applications for new H-1bs before January 1, 2004 if at all possible.  Students working on optional practical training should not wait until summer to file applications for change of status to H-1b.

H-1b Filing fees   

The law which required a $1,000 "training fee" for most H-1b applications is scheduled to sunset on October 1, 2003.   There is already talk of extending the fee - but there is no talk of increasing the H-1b cap at this time.

If you have H-1bs needing renewal, and can wait until after October 1, 2003 to file them, you might save $1,000 each.  Even if the fee is extended, we can hope that Congress won't take action until after 10/1/2003, leaving a window where fees will be lower.  Watch this page for developments!

BCIS has announced figures for H-1b usage for the fiscal year 2002 which  ended on September 30, 2002.  H-1b approvals totaled 197,537.  Only 79,100 were subject to the annual cap - which in 2002 was 195,000.  So it wasn't even close.

Interesting is the fact that 103,584 of those petitions were for new H-1b employment (rather than renewals).  That's just over HALF the number of new petitions filed in fiscal 2001 (201,079).  That statistic speaks volumes about the economy!

The good news?  Plenty of H-1bs left for fiscal 2003.  And with the start of fiscal 2004 on October 1, 2003, the $1,000 training fee required to be paid with most H-1b petitions goes away!  The bad news?  With the start of the new fiscal year, the H-1b cap reverts to just 65,000 - and unless the economy continues to slide, we'll run out of H-1b numbers in the Spring of 2004.  Plan accordingly, and file H-1b applications well before January 1, 2004 if at all possible.

posted April 10, 2003
.

INS has advised the American Immigration Lawyers Association that it has reached the 115,000 H-1B limit for fiscal 2000. Only cases filed March 17, 2000 or earlier would have been included in the adjudications for the current fiscal year. INS indicates that 29,500 cap-subject H-1Bs remain to be applied against the fiscal 2001, and that INS will announce procedures to begin adjudication of those cases with an October 1, 2000 start date.

INS Continues H-1b Cap Processing
(updated July 14, 2000)

(from AILA) INS advises that it is currently processing H-1B cases subject to the cap through the receipt filing date of March 17. The Service is preparing a public announcement for release in the near future on the ultimate disposition of the fiscal year 2000 cap.

(Updated 10 May 2000)

INS HQ advises that it has instructed the Service Centers to now process H-1B cap cases through the filing date of February 25, 2000. This is part of an INS strategy to keep the Service Centers moving at approximately the same pace, so that companies in one jurisdiction are not advantaged or disadvantaged over others. The INS indicates that it will continue to lurch forward from one filing date to another in this manner until the cap is reached. February 25 is NOT necessarily the cutoff date for filings to "make it" under the cap--it is just the date to which the INS will process at this time. Once all the Service Centers reach that date, INS will take stock of the situation and determine the next date to which processing will lurch. (From AILA Infonet)

Starting Tuesday March 21st the INS is no longer accepting H-1B visa petitions for FY 2000 employment of H-1B workers because it now has a sufficient amount of pending plus approved petitions to reach the limit for FY2000 of 115,000 approvals.

For more information from INS, see their web announcement.

What it means.............

• A petition for someone who is already in H-1b status, even a petition by a different employer, is not subject to the 115,000 per annum cap.
  
• An individual who has an approved petition can get a visa based on that petition, without regard to when the cap was reached.
  
• Petitions filed with INS before 3/21/2000 will continue to be adjudicated until INS reaches 115,000 approvals of cases subject to the cap.  As of 2/29/2000 only 75,000 cases had actually been approved.  The INS announcement is based on the number of cases approved, plus cases which have been filed and are still pending.
  
• If your case was filed before 3/21/2000, there is a good chance that it will be approved.
  Once INS approves 115,000 cap subject cases, they will stop.
  
• Cap subject cases cannot be filed from this point unless a start date is requested of October 1, 2000 or later.  Applications for change of status to H-1b cannot be filed unless your current status can be lawfully maintained until October 1, 2000.  Students (F-1 or J-1) who file for timely for change of status will be considered to be maintaining status until October 1, 2000,  provided they do not work without authorization.
  
• Hiring bonuses (signing bonuses) can be paid to prospective H-1b employees before they have work authorization  
  
• Cap subject cases already filed, which are not approved under this years cap will be approved with starting dates of October 1, 2000.  F-1 and J-1 students who are beneficiaries of petitions properly filed before their status expires can remain in the U.S. until their change of status is effective on October 1, 2000 if they do not violate their status by working without authorization.  If such students have practical training, they will have to stop working at the expiration of their practical training and cannot start working again until their H-1b petitions have become effective (no earlier than October 1, 2000). 
  
• Congress is considering legislation which will change the cap on H-1b approvals.   A new law may make it possible to approve more petitions.