August 17, 2005

Dear Clients and Friends,

H-1B Numbers for FY 2006 used up as of August 10, 2005

The Immigration Service has announced that there were sufficient H-1B petitions already on file as of August 10, 2005 to use up all of the approximately 58,000 numbers available for “regular” H-1B visas for the next fiscal year beginning on October 1, 2005 and continuing through September 30, 2006. Therefore, any petitions for H-1B “cap” cases (i.e. subject to the cap-see below for information about exempt petitioners) received after August 10, 2005 would be rejected and returned to the petitioner.

There may be insufficient numbers for all cases received ON August 10, 2005. Therefore the Immigration Service will apply a random selection process to identify cases which may be processed, and will return all others to the petitioner.

Unless the Immigration Service “finds” some unused numbers (which based on past experience is a possibility) or new legislation is passed by Congress to provide relief, no H-1B petitions that are subject to the “cap” can be filed before April 1, 2006-and the earliest start date for those petitions will be October 1, 2006.

In addition to the 58,000 numbers available for “regular” H-1B petitions, Congress passed the H-1B Visa Reform Act late last year creating an additional 20,000 H-1B visa numbers for applicants who earned at least a Masters Degree or higher in the U.S. Of these, approximately 10,000 remain available for the current fiscal year ending September 30, 2005 (therefore making an immediate start date possible for these applicants) and approximately 12,000 remain available for the next fiscal year beginning October 1, 2005.

It is still possible to obtain H-1B status for regular cases in the following situations:

• Extensions of H-1B status for aliens currently employed in H-1B status by the petitioner
• “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can not be filed at this time unless the applicant has earned at least a Masters Degree or higher in the U.S.!].

Exempt Organizations

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

• institutions of higher education
• a nonprofit organization related to or affiliated with an institution of higher education
• a nonprofit research organization or governmental research organization

(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)

Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education

Alternatives to the H-1B

The inability to access the H-1B visa status will require a closer look at other visa alternatives. Briefly, these include:

• TN visa status for citizens of Canada or Mexico
• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year
• O-1 visa status for aliens of extraordinary ability
• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)
• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

• An alien whose spouse is in the final stages of applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”
• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver
• An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

Urge Congressional Action

If you believe that the availability of H-1B workers is vitally important to your organization, we urge you to make your views known to Congress immediately. Contact directly the office of your Congressman or Senator and call for action to increase the supply of H-1B visa numbers. Contact information may be found at www.congress.org as well as at many other websites.

As always, please contact our office if you have any questions.