July 12, 2006

H-1B Advanced Degree Cap Quickly Approaching

On July 7, 2006, U.S. Citizenship and Immigration Services (USCIS) updated the number of H-1B Advanced Degree visas available for Fiscal Year 2007 (FY2007). USCIS announced that the number of approved and pending petitions had reached 14,249. According to USCIS, approximately 700 H1-B Advanced Degree petitions have been received but have not yet been data-entered and receipted. Therefore, the combined approximate total as of July 6th was 14,949. It is estimated that USCIS has been receiving approximately 800 petitions weekly.

We expect that there will be a steady increase in submissions until the cap is reached. Therefore, we urge employers to identify their staffing requirements and file petitions on behalf of employees or prospective employees who will be impacted by the Advanced Degree cap as quickly as possible.

By way of background, each fiscal year, twenty thousand new H-1B visas are available for foreign workers with a Master's or higher level degree from a United States academic institution. For FY2006, the advanced degree cap was reached on January 17, 2006. FY 2007 begins on October 1, 2006. The USCIS began accepting new H-1B petitions for FY 2007 on April 1, 2006.

The standard annual numerical limit, or "cap", for the H-1B classification is 65,000 for each fiscal year. Of the 65,000 H-1B visas available, 6,800 are set aside for the H-1B1 program under the terms of the US-Chile and US-Singapore Free Trade Agreements. For FY2007, the standard cap was reached on May 26, 2006, four months prior to the H-1B start date.

Employers should keep in mind that some H-1B petitions are not subject to the cap. These include H-1B petitions for amendment or extension of status, including new employers, and requests for concurrent H-1B employment; petitions filed by exempt organizations, including institutions of higher education, nonprofit research organizations or entities related or affiliated with an institution of higher education, or a nonprofit research organization or governmental research organization; H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and, H-1B petitions for beneficiaries counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six- year period.

Proskauer Rose LLP counsels corporate clients and their employees in all areas of immigration, nationality and consular law. This includes obtaining work authorizations and visas to enable companies to hire aliens or transfer personnel between nations; compliance with and defense of anti-discrimination and unlawful immigration practices; and advice and appearances in special circumstance matters such as asylum claims and removal proceedings. Much of the work involves obtaining appropriate non-immigrant or immigrant visas to enable corporations to transfer executives, managers, persons with specialized knowledge or other key personnel temporarily or permanently to the United States.

For more information contact: David Grunblatt

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