U.S. Citizenship and Immigration Services (“USCIS”) has announced that the 20,000 H-1B cap for foreign nationals with advanced degrees from U.S. institutions has been reached.
The USCIS advises that July 26, 2006 is the “final receipt date” for new H-1B petitions under this exception for fiscal year 2007, so that petitions received after July 26, 2006 will be rejected and returned. Petitions received on the “final receipt date” are subject to a lottery to enable CIS to apply the remaining numbers to petitions received on that date. Those not selected will be rejected and returned. Thus, with certain exceptions, absent legislative action, the earliest date an employer may file an H-1B petition for any H-1B nonimmigrant will be April 1, 2007 with a start date of October 1, 2007.
WHO IS EXCEPTED FROM THE CAP
Foreign nationals who currently hold H-1B status or previously held H-1B status for a private employer and have not left the United States for more than one year since last holding that status are not affected by the cap. Accordingly, the USCIS will continue processing petitions filed to:
- 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 from one private employer to another.
- Allow current H-1B workers to work concurrently in a second H-1B position.
In addition, petitions for new H-1B employment are exempt from the annual cap if the alien will be employed at an institution of higher education or a related or affiliated non-profit, or at a non-profit research organization or a government or research organization.
Finally, new H-1B1 visas continue to be available for nationals of Chile and Singapore under the special programs for those countries.
H-1B BLACKOUT RELIE
Only Congress can provide relief from the current H-1B Blackout. The Senate provided for relief from the Blackout in the Comprehensive Immigration Act of 2006 which had passed in May. This bill will increase the cap to 115,000 per year and would permit the numbers to increase or decrease depending upon the annual demand. The House introduced a stand-alone bill, the “Securing Knowledge, Innovations and Leadership” (SKIL) Bill, that would also increase the H-1B cap to 115,000. At this moment, it is unclear whether the Senate and House can reach a compromise on immigration legislation this year, which would include a relief from the H-1B blackout. Please call your Senators and Representatives and encourage them to pass immigration legislation this year that would provide, among other things, relief from the H-1B blackout.
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