As readers of Hammond Law Group’s Immigration Alerts are certainly aware, the H-1 cap allows 65,000 new H-1(b) visas per fiscal year. In fiscal year 2006 (October 1, 2005 – September 30, 2006) the H-1(b) cap was reached before the fiscal year actually started -- August 10, 2005.

It is Hammond Law Group’s recommendation that employers who seek H-1(b) workers for FY2007 ought to expect to prepare to file these cases in April 2005.

Companies may petition for H-1(b) workers as soon as six months prior to the employee’s anticipated start date. Therefore if an employer wishes to have an employee start on October 1, 2006, the earliest date that the employer may file the petition with the USCIS is April 1, 2006.

At this time we have no way to gauge just how quickly the FY2007 H-1(b) cap will be exhausted but we have anecdotal evidence that there will be a large number of new H-1(b) petitions filed in April 2005. For instance, there is likely much pent up demand for new H-1(b) workers caused by the FY2006 H-1(b) cap being reached so quickly.

Only "cap-subject" cases are affected by this quota. "Cap-subject" H-1(b) visas are only those cases for new hires, who have never previously held H-1(b) petitions. For instance, students, off shore hires, and those wishing to change from another visa classification, such as L-1 or E-2.

H-1(b) cases transferred from one company to another company ("company transfer cases") are NOT subject to the cap. Likewise, H-1(b) cases for some non-profit research organizations and higher education institutions are also not subject to the H-1(b) cap.