The Immigration and Naturalization Act ("INA") allows for the issuance of only a specific number of each type of visa, both immigrant and nonimmigrant, every fiscal (October to September) year. Once this visa "cap" is reached, no more visas can be issued until the beginning of the next fiscal year (or October 1).

In the last few years, the number of petitions filed for H1B workers has exceeded the number of visas available. Recently, the U.S. Congress amended the INA to allow for the issuance of more H1B visas over the next few years. This increase, however, has not solved the problem. Moreover, the number of H1B visas that will be available will start dropping again in the 2000-2001 fiscal year.

Not all H1B visa petitions are subject to the cap, however. The cap applies only to new H1B petitions. Therefore, the following types of H1B petitions do not fall within the annual cap:

• An extension of a current H1B visa.
• An amendment to a current H1B visa (e.g., when a foreign national's current job has changed significantly).
• A change in employers, or the addition of a second, part-time, H1B petition.
  

If you have any questions regarding whether you
or your potential employee will be subject to the H1B cap,
please contact Hammond & Associates