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For Fiscal 2008: H1B CAP REACHED on April 2, 2007 for H-1B regular petitions, according to USCIS

The USCIS has announced that the H-1B cap for regular cases was reached on April 2, 2007, i.e., the first day that the filing was permitted. This means that petitions for regular cases will go into a random selection lottery. The USCIS does not yet know whether the Master's cap was reached or not. The USCIS notice appears below, and as an attached PDF file.

As our firm suggested, the H-1B cap was reached on the first day the USCIS accepted petitions.

As a result of the demand for H-1B visas far exceeding the supply of H-1B visas, for each of the past three years, the H-1B cap has been reached earlier and earlier, as shown by the table below.

Fiscal Year Earliest Employment Start Date Earliest H-1B Filing Date Date H-1B Quota Cap Reached # of Days H-1B Filing Window Open
(incl. Sat. Sun, and holidays)
# of Days less than prior fiscal year
2005 October 1, 2004 April 1, 2004 October 1, 2004 183  
2006 October 1, 2005 April 1, 2005 August 10, 2005 131 52
2007 October 1, 2006 April 1, 2006 May 26, 2006 55 76
2008 October 1, 2007 April 1, 2007 April 2, 2007 1 54

Over the past few years, the H-1B quota cap has been reached earlier and earlier each year, as follows:

  • For the 2007 fiscal year, which started on October 1, 2006, the H-1B quota was reached on May 26, 2006, i.e., over four month before the fiscal year even started, and almost three months earlier than it was reached on the prior fiscal year.
  • For the 2006 fiscal year, which started on October 1, 2005, the H-1B quota was reached on August 10, 2005, i.e., over one month before the fiscal year even started, and almost two months earlier than it was reached on the prior fiscal year.
  • For the 2005 fiscal year, which started on October 1, 2004, the H-1B quota was reached on October 1, 2004, i.e., on the first day that the fiscal year started.
Consequently, based on these numbers, it was not too surprising that for the 2008 fiscal year, the H-1B quota was reached on April 2, 2007.


The USCIS Announcent Appears Below:

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2008 (FY 2008). USCIS will use a random selection process (described below) for all cap-subject filings received on April 2, 2007 and April 3, 2007. USCIS will reject and return along with filing fee(s) all petitions received on those days that are not randomly selected.

Cap Procedures: In keeping with USCIS regulations, USCIS will use the following process to handle H-1B petitions subject to the FY 2008 cap:

• USCIS has determined that as of April 2, 2007, it had received enough H-1B petitions to reach the FY 2008 H-1B cap and has set the “final receipt date” as April 2, 2007.
• In keeping with its regulations, USCIS will subject H-1B petitions received on the “final receipt date” and the following day to a computer-generated random selection process.
• USCIS will reject all cap-subject H-1B petitions for FY 2008 received on or after Wednesday, April 4, 2007.
• USCIS will reject and return along with the filing fee(s) all cap-subject H-1B petitions that are not randomly selected.
• Petitioners may re-submit petitions on April 1, 2008 when H-1B visas become available for FY 2009. This is the earliest date for which an employer may file a petition requesting FY 2009 H-1B employment with a start date of October 1, 2008.

As of late Monday afternoon (April 2), USCIS had received approximately 150,000 cap-subject H-1B petitions. USCIS must perform initial data entry for all filings received on April 2 and April 3 prior to conducting the random selection process. In light of the high volume of filings, USCIS will not be able to conduct the random selection for several weeks.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which the H-1B submission was sent. USCIS advises employers that there is no need for concern should that occur and that there is no need to contact USCIS.

Cap-Exempt Petitions: As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from any fiscal year cap on available H-1B visas. USCIS does not yet know how many of these petitions it has received as those petitions are mixed with the cap-subject cases received on April 2 and 3. USCIS will make a future announcement regarding the “final receipt date” for these petitions.

Current H-1B Workers: Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that, in addition to the cap exemption for aliens with U.S. earned master’s degrees discussed above, certain H-1B petitions are exempt from the cap. Those petitions are not affected by this release.

H-1B in General: U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted. The DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

 

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H1B_Regular_ CAP_Reached.pdf43.13 KB

About Antao & Chuang

Attorney Roger S. Antao Attorney Enna Chuang

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Since 1991, Antao & Chuang, Attorneys at Law, has served clients located throughout the U.S. and the world in U.S. immigration matters (including H-1B, J waivers, L, E, O, P visa cases, green card cases, and other immigration matters). We represent individuals and companies (from small companies to major multi-national corporations).

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Search for H1B Visa Employers

You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

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Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

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