For Fiscal Year 2004, the H-1B cap is limited to 65,000, down from 195,000 visas allotted for the previous fiscal year.  Unofficial reports from USCIS indicate that this cap may end earlier than expected because H-1B numbers are being used up quickly.  It is now anticipated that USCIS may have enough approved and pending H-1B cases to meet the cap for 2004 by January or even before the end of this month.

Once USCIS believes it has enough cases to reach the limit that are either approved or pending, it will publish a notice in the Federal Register announcing that new cases that are subject to the H-1B cap will not be accepted for the 2004 fiscal year.  It is also assumed that Premium Processing for H-1B cases subject to the cap will be suspended before the end of this month or early in January.

Cases that have been received but not adjudicated on the date published in the Federal Register Notice will continue to be adjudicated until the cap is reached.  Once the cap is actually reached, another notice will be published in the Federal Register announcing that the cap was met and that any unadjudicated petitions will be processed at the beginning of Fiscal Year 2005, which begins on October 1, 2004.

The limit on H-1Bs is expected to be reached so early due to the reduction in visa numbers, an increase in H-1B usage, a backlog of H-1B cases at the beginning of the fiscal year, many premium-processing cases and a reduction in numbers because of the Singapore and Chile Free Trade Agreements.

There are H-1B cases that are not subject to the cap.  Only those petitions regarding what USCIS considers to be “new employment” count against the cap.  These cases are those filed on behalf of foreign nationals who are not currently in H-1B status.  Extension of status cases, even if the foreign national changed employers, do not count against the cap.  Also, a case that has been counted against the cap for the previous six years does not count against the cap limit, unless the applicant would be eligible for a full six years of authorized admission at the time the petition is filed.

Other cap exemptions include individuals who are employed at higher educational institutions and individuals employed by non-profit research organizations or government research organizations due to the American Competitiveness in the Twenty-First Century Act (AC-21), enacted in 2000.  Also exempted from the cap are J-1 nonimmigrants changing to H-1B status who received waivers through the Conrad State 30 Program.

AILA-USCIS Liaison Chair Bob Deasy contacted the Deputy Director, Citizenship and Immigration Services, William R. Yates, for information on the H-1B cap.  Mr. Yates responded that USCIS is