H-1B cap for fiscal year 2008 has been reached

On April 3, 2007, the CIS (former INS) announced that it had received enough new H-1B petitions to reach the annual cap of 65,000. Approximately 150,000 cap-subject petitions were received on April 2. This was the first day on which petitions could be filed for the FY 2008 quota.

Under CIS regulations, all petitions received on the first two days will be subject to a random selection. All petitions not selected will be returned with the filing fees. This is expected to take several weeks.

Now that the cap has been reached, no new H-1B petitions can be filed until April 1, 2008.

The cap applies to workers who have not previously held H-1B status, or who have held H-1B status, but have been out of the United States for one year or more. The cap does not apply to the following cases:

• Extensions of stay in H-1B status.
• Change of H-1B employers (unless the previous employer was exempt).
• University or affiliated employers
• Non-profit or U.S. government research organizations
• J waiver physicians (no longer limited to Conrad 30)

There is also an exemption for first-time beneficiaries who hold U.S. master's degrees. Up to 20,000 people each year will be exempt in this category. It is not known at this time whether the master's cap has been reached as well..

Another new law provides 10,500 extra visas for Australian citizens in the E-3 category, which is very similar to the H-1B category.

Contact our office to see if there is another category available for you if you are affected by the cap, such as TN, E-3, O-1, or L.

The American Immigration Lawyers Association has called on Congress to increase the number of H-1B visas to allow the U.S. economy to continue to benefit from the talents and abilities of foreign workers.