Current Cap Count for Non-Immigrant Worker Visas For Fiscal Year 2007
What is a “Cap”?
What is a “Cap”?
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 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.
1 Refers to the estimated numbers of beneficiary applications needed to reach the cap, with an allowance for denials and revocations. Each target is subject to revision later in the cap cycle as more petitions are processed.
H-1B1An 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.
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:
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 numerical limit refers to the number of visas issued by Department of State (DOS) to first-time workers and to the number of persons changing to H-2B status determined by USCIS. For FY 2006, the total annual numerical limit or cap is 66,000. Approximately 99 percent of the cap is made up of visas.
Why does USCIS authorize more H-2B workers than the statutory limit?
Employers often decide after submitting a H-2B petition that the workers are no longer needed. 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 visa for these workers. As a result, workers authorized to work by USCIS will exceed the number of visas issued---the basis of the statutory limit. Another factor is that DOS denies some visas even though USCIS has approved petitions for these workers.
1 Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations.
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.