The USCIS announced on the afternoon of April 3, 2007 that it had received enough new H-1B petitions to consume all of the 65,000 available H-1Bs for this coming fiscal year, which begins on October 1, 2007 and ends on September 30, 2008. Petitions for H-1B classification must be filed up to six months in advance of the work start date.

The announcement confirmed that the regular cap was reached on the first day that the USCIS could accept H-1B petitions under the FY2008 cap: Monday, April 2, 2007. USCIS originally stated that on April 2 and April 3, 2007, it received 150,000 unique pieces of mail containing H-1B petitions; however, the agency later revised that estimate to 133,000 following a physical count of the mail. While the Congressionally-mandated total H-1B cap for FY2008 is 65,000, over ten percent of those numbers are reserved for nationals of Chile and Singapore under the new Free Trade Agreements (FTAs) that took effect January 1, 2004. (Many of the Singapore and Chile numbers are expected to be added back to the general H-1B cap after October 1.)

Under the regulations, when the cap limit is reached on the first day of filing, a random selection process applies, including cases filed on the first two business days. Thus H-1B petitions received on both April 2 and April 3, 2007 will undergo data entry for the random selection process to determine which cases will receive the limited cap numbers. The USCIS has to enter all H-1B filings received on April 2nd and 3rd into its system before conducting the lottery selection process. USCIS estimates that it may take several weeks to complete the data entry and random selection, due to the volume of cases. Any H-1B cap-subject case that is not selected will be rejected and returned along with all USCIS filing fees.

The USCIS has not yet released information concerning the 20,000 H-1B numbers for beneficiaries holding advanced degrees from U.S. universities. The USCIS must first sort these cases from the regular cap-subject cases.

Filing Receipts Do Not Indicate Award of a Cap Number

Employers and their immigration counsel have already begun to receive filing receipts from USCIS for cap-subject H-1B cases. The issuance of a filing receipt in a case does not mean that the case has been assigned an H-1B number. USCIS has explained that it will complete data entry and issues filing receipts for all cases received on the final receipt date, in order to include these cases in the computerized random selection process.

We expect that USCIS may elect to manage its workload by distributing filings receipted at one Service Center to other Centers for data entry. Petitioners may therefore receive receipt notices or other correspondence from a Service Center other than the one at which the case was filed.

Cap-Exempt Cases, Filings on Behalf of Current H-1B Workers Continue to Be Accepted

USCIS will continue to accept H-1B petitions that are not subject to the quota. Employers should be aware that the cap does not affect H-1B employees who: (1) change employers; (2) apply for extensions of stay; and, (3) change jobs where the employer files to amend a previously approved petition. Also, the cap does not apply to employees of institutions of higher education and related non-profit entities or non-profit research organizations.

In order to obtain more H-1B numbers, Congress will need to enact new legislation. We cannot predict the likelihood of the President signing into law a bill increasing H-1B numbers.

Employers who miss this year's cap will have to wait to file new H-1B petitions commencing in Fiscal Year 2009. Those H-1B numbers will only be available for start dates on or after October 1, 2008. Employers may file up to six months in advance of the H-1B visa or status start date, and should plan their case strategy accordingly.

(c) 2007 Leete, Kosto & Wizner, LLP   See related Disclaimer at www.lkwvisa.com