*6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY 2007. **Filings will be rejected the day after the cutoff date for new filings. The cutoff date will be whenever sufficient petitions and associated worker applications have been received to satisfy the cap of 33,000 visas minus first-time beneficiaries changing status. USCIS has estimated that 62% of approved beneficiaries will actually result in H-2B visas issued by Department of State. Accordingly, USCIS will cutoff the first half cap at 52,000.
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. businesses and other organizations 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 current annual cap on the H-1B category is 65,000.
H-1B Advance 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.
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.