The latest public count on the H-1B cap for the coming Fiscal Year (FY2007) indicates that as of May 11, with just over one month of filings, a total of 34,808 cases had been filed against the cap.

There are 65,000 H-1B visas available for this coming fiscal year, which begins on October 1, 2006 and ends on September 30, 2007. While the Congressionally-mandated total H-1B cap for FY2007 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 visa numbers are expected to be added back in after October 1) Thus only 58,200 H-1B visas are available under the cap for the coming fiscal year, leaving only about 23,400 visas available as of mid-May 2006, nearly five months before the new fiscal year begins. (Petitions for H-1B classification must be filed up to six months in advance of the work start date.)

According to the latest report, 4,638 cases have also been filed which will count against the 20,000 H-1B exempt visa numbers available during FY2007 for foreign nationals holding Master's degrees from U.S. universities.

We expect the remaining standard H-1B numbers to be depleted quickly, as those with H-1B cap-subject cases will likely file their H-1B petitions in the coming weeks to lock in one of the remaining H-1B cap numbers. (USCIS regulations state that issuance of cap numbers are based upon the date of case filing, not approval.) 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. Last year, the agency announced that the cap had been reached on August 12, 2005. This year the numbers may be depleted even more quickly.

Note 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. The cap also 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.

(c) 2006 Leete, Kosto & Wizner, LLP   See related Disclaimer at www.lkwvisa.com