Current Cap Count for Non-Immigrant Worker Visas for Fiscal Year 2008

Via USCIS

Please see the information relating to H-1B Program Changes for FY 2009 in the Related Links section of this page.

What is a “Cap”?

The word “Cap” refers to annual numerical limitations set by Congress
on the numbers of workers authorized to be admitted on different types
of visas or authorized to change status if already in the United States.

H-1B

Established
by the Immigration Act of 1990 (IMMACT 90), 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 and, in some cases, beyond, if an a/s
application is pending.

An H-1B nonimmigrant (with the exception
of certain fashion models) must have a bachelor’s degree or higher (or
equivalent) in the specific specialty. The H-1B visa program is used by
some U.S. employers to employ foreign workers in specialty occupations
that require theoretical or technical expertise in a specialized field
and a bachelor’s degree or its equivalent. Typical H-1B occupations
include architects, engineers, computer programmers, accountants,
doctors and college professors. The H-1B visa program also includes
certain fashion models of distinguished merit and ability and up to 100
persons who will performing services of an exceptional nature in
connection with Department of Defense (DOD) research and development
projects or coproduction projects.  The current annual cap on the H-1B
category is 65,000.   Not all H-1B nonimmigrants are subject to this
annual cap.

H-1B Employer Exemptions

H-1B
nonimmigrants who are employed, or who have received an offer of
employment, by institutions of higher education or a related or
affiliated nonprofit entity, as well as those employed, or who will be
employed, by a nonprofit research organization or a governmental
research organization are exempt from the cap.

H-1B Advanced 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
H-1B Visa Reform Act of 2004 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. Such persons are statutorily exempted from the
annual cap.

 

 

Cap

Beneficiaries Approved

Beneficiaries Pending Petitions Receipted

Beneficiaries 

 Pending Petitions yet to be Receipted

Total

Date of Last Count

H-1B (FY 08)

58,200 1

——

——

——

Cap Reached

4/2/2007

H-1B Advanced Degree Exemption (FY 08)

20,000

——

——

——

Cap Reached

4/30/2007

 

1
6,800 visas are set aside during the fiscal year for the H-1B1 program
under the terms of the legislation implementing the U.S.-Chile and
U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can
be made available for H-1B use with start dates beginning on October 1,
2007, the start of FY 2008. USCIS has added 5,800, the projected number
of unused H-1B1 Chile/Singapore visas to the FY 2008 H-1B cap.

H-1B1

An H-1B1 is a national of Chile or Singapore
coming to the Unites States to work temporarily in a specialty
occupation. The law defines an H-1B1 specialty occupation as a position
that requires theoretical and practical application of a body of
specialized knowledge. The beneficiary must have a bachelor’s degree or
higher (or equivalent) in the specific speciality. The combined
statutory limit is 6,800 per year. 1,400 visas are set aside annually
for nationals of Chile, and 5,400 for nationals of Singapore.

H-2B

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.

The Save
Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the
annual numerical limitations of 66,000 into two halves.  USCIS
regulations allow for filings 6 months in advance.  However, H-2B
petitioners first must obtain a temporary labor certification from the
Department of Labor (DOL). DOL regulations stipulate that the
application for temporary labor certification may not be filed more
than 120 days in advance of the need for the employee to ensure the
accuracy of the labor market test.  Thus, USCIS normally begins
receiving H-2B petitions with employment start dates in October in June
or July.

What is the H-2B numerical limit set by Congress?

The
H-2B numerical limit set by Congress per fiscal year is 66,000.  USCIS
notes that, as of October 1, 2007, Congress has not amended the
“returning worker” provisions of the Save Our Small and Seasonal
Businesses Act of 2005 (SOS Act) to cover FY 2008.

Until October
1, 2007, if a petition was approved only for the purpose of extending
an alien’s stay in H-2B status, or only for change or addition of
employers or a change in the terms of employment, the worker was not
counted against the numerical limit at that time.  By contrast, an
alien who changes nonimmigrant status to H-2B was generally counted
against the annual H-2B cap.

Why does USCIS authorize more H-2B workers than the statutory limit?

USCIS
adjudicates H-2B petitions based on the facts presented by the
petitioner in the petition.  If the alien beneficiaries of the H-2B
petition are abroad, USCIS then sends the approved petitions to the
Department of State (DOS) for consular processing.  Employers, however,
may decide after submitting an H-2B petition that the aliens on whose
behalf it petitioned are no longer needed. In such cases, DOS will not
issue the aliens an H-2B visa.  In other instances, some aliens never
appear at the consular post for their H-2B visa interview following
petition approval.   DOS may also deny some H-2B visa applications even
though USCIS has approved petitions for these workers.  Similarly, DHS
Customs and Border Protection (CBP) may determine at a port-of-entry
that the beneficiary of an approved H-2B petition is inadmissible and
refuse to admit the alien to this country. 

Because
of such “drop outs,” the number of potential H-2B workers authorized to
work by USCIS will exceed the actual number of visas issued based on
petition approvals — the basis of the statutory limit.

 

Cap

Beneficiaries Approved

Beneficiaries Pending

Beneficiaries Target 1

 Total

Date of Last Count

H-2B 1st Half

33,000

——

——

——

Cap

Reached

9/27/2007

H-2B
2nd Half

33,000 2

——

——

——

Cap

Reached

1/2/2008

H-2B Annual (FY 08)

66,000 3

——

——

——

——

——

 

1
Refers to the estimated numbers of beneficiary applications needed to
reach a cap, with an allowance for withdrawals, denials and revocations.
2 A shortfall in the 1st half would be made up in the 2nd half.
3 Visas issued plus beneficiaries changing status already in the United States.

H-3

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 November 29, 2007, one of
these H-3 visas had been approved with a start date in FY 2007.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: