> Current Cap Count for Non-Immigrant Worker Visas For Fiscal Year 2007

 

What is a “Cap”? The word “Cap” refers to annual numerical limitations set by Congress on the numbers of workers authorized to be admitted on different types of visas or authorized to change status if already in the United States. H-1B Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes fashion models. The current annual cap on the H-1B category is 65,000. H-1B Advanced Degree Exemption The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The Act also makes available 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution.   Cap Beneficiaries Approved Beneficiaries Pending Beneficiary Target 1 Total Date of Last Count H-1B (FY 07) 58,200 2 ------ ------ ------ Cap Reached 5/26/2006 H-1B Advanced Degree Exemption (FY 07) 20,000 ------ ------ ------ Cap Reached 7/26/2006 H-1B (FY 06) 58,200 ------ ------ ------ Cap Reached 8/10/2005 H-1B Advanced Degree Exemption (FY 06) 20,000 ------ ------ ------ Cap Reached 1/17/2006 1 Refers to the estimated number on April 1, 2006, of beneficiary applications needed to reach the cap, with an allowance for denials and revocations. This target is subject to revision later in the cap cycle as more petitions are processed. 2 6,800 visas are set aside during the fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can be made available for H-1B use with start dates beginning on October 1, 2006, the start of FY 2007. USCIS has added the projected number of unused H-1B1 Chile/Singapore visas to the FY 2007 H-1B cap as announced in the H-1B Press Release, dated June 1, 2006.   H-1B1 An H-1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The law defines specialty occupation as a job that requires a bachelor’s degree or higher. The beneficiary must have a bachelor’s degree relating to the job offer. Through May 2006, 301 H-1B1s counted against the FY 2006 H-1B1 cap. The combined statutory limit is 6,800 per year. Based on the H-1B1 usage to date, USCIS has reasonably projected that 700 H-1B1 visa numbers will be used in FY 2006. The projected number of 6,100 unused H-1B1 visas for FY 2006 has been incorporated and applied to the FY 2007 H-1B cap. H-2B The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. On May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). The SOS Act allowed USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately: For FY 2005 and 2006: All “returning workers,” meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means: In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004.   In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005. If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year. What is the H-2B numerical limit set by Congress? The "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) are currently set to expire on September 30, 2006, which represents the end of FY 2006. If the “returning worker” provisions of the SOS Act are not extended by Congress, then aliens who would have otherwise qualified as returning workers will be subject to the annual cap of 66,000 in FY 2007. Why does USCIS authorize more H-2B workers than the statutory limit? Employers often decide after submitting an H-2B petition that the workers are no longer needed. In other instances, some aliens never appear at the consular post for their visa interview following petition approval. However, USCIS still processes these petitions (notification from employers that workers are no longer needed is rare) and sends the approved petitions to DOS for consular processing. If the employers no longer request these workers, DOS will not issue visas for these workers. As a result, the number of potential H-2B workers authorized to work by USCIS will often exceed the actual number of visas issued based on petition approvals---the basis of the statutory limit. Another factor is that DOS denies some visa applications even though USCIS has approved petitions for these workers.   Cap Beneficiaries Approved ---New Beneficiaries Approved---Returning Beneficiaries Pending---New and Returning Beneficiaries Target 1 Total Date of Last Count H-2B 1st Half 33,000 3,626 612 4,764 To be determined 9,002 8/25/2006 H-2B 2nd Half 33,000 2 ------ ------ ------ ------ ------ ------ H-2B Annual (FY 07 66,000 3 ------ ------ ------ ------ ------ ------ 1 Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations. 2 A shortfall in the 1st half would be made up in the 2nd half. 3 Visas issued to 1st-time beneficiaries plus 1st-time beneficiaries changing status already in the United States. H-3 The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training). The training may be provided by a business entity, academic, or vocational institute. The H-3 nonimmigrant visa category also includes aliens who are coming temporarily to the U.S. to participate in a special education training program for children with physical, mental, or emotional disabilities. There is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of May 23, 2006, a total of 6 of these H-3 visas had been approved in FY 2006.