Did you miss the H-1B visa cap? – Part I

Mike Coles
June 7, 2006 — 1,718 views  
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In case you are new to H-1B visas, here is a brief background. H-1B visas are work visas for professionals. Professionals include occupations for which a Bachelor’s degree is the minimum requirement. Easy examples of professional occupations are teachers, engineers, doctors, and lawyers. Other, less-obvious examples include senior executives, marketing specialists, and accountants. In each case, the first question to ask is whether the position normally requires a candidate possess a Bachelor’s degree in order to fill the position. Registered nurses are not professional positions (at least for purposes of H-1B visas) and many non-technical sales positions also fail to qualify. The U.S. government allows 85,000 initial H-1B visas each year. Each “year” is defined as the U.S. government’s fiscal year: October 1 through September 30 of the following year. Of the 85,000 visas, however, 20,000 are set aside for professionals holding an advanced degree (Masters or higher) from an accredited U.S. institution. Of the remaining 65,000 H-1B visas, 6,800 visas are set aside for citizens of Chile and Singapore. The remaining 58,200 visas are available for all other foreign nationals. While 58,200 new H-1B visas may seem like a large number, consider the following trends: From 1992-1998, the U.S. permitted 65,000 H-1B visas annually. Beginning in 1997, the number of applications exceeded the number of visas permitted under the quota. In response to Y2K concerns, the quota first was increased to 115,000 for Fiscal Years 1999 and 2000. The quota then was increased to 195,000 for Fiscal Years 2001, 2002, and 2003. But the quota increase was short-lived. Beginning in 2004, the quota returned to its initial cap of 65,000, now with an extra 20,000 visas for professionals holding advanced degrees. The practical effect of the new 58,200 H-1B visa cap? Chaos. In Fiscal Year 2005, the process worked almost perfectly. H-1B visa applications reached 65,000 just as October 1, approached, which meant that new applicants needed to wait less than a month before new H-1Bs were available. We did not fair as well in Fiscal Year 2006. Fiscal Year 2006 began on October 1, 2005. Amazingly, as of August 10, 2005, we exceeded the 2006 quota for H-1B visas. Never before had we reached the H-1B visa quota before the fiscal year even began. So how did we do in Fiscal Year 2007? Even worse. By May 25, 2006, all visas for the period October 1, 2006 to September 30, 2007 have been accounted for. So here we are in June 2006 and there are no visas for professional workers until October 2007. Did you miss the H-1B cap? If so, don’t despair. There may be options available for you and your company. Check back in a few weeks for Part II (Alternatives to H-1B visas).

Mike Coles

Michael E. Coles graduated from Duke University with a B.A. degree in political science and African-American studies and a J.D. degree. He began his legal career at Winstead Sechrest & Minick P.C. and he founded The Coles Firm PC, a labor and employment law boutique.