The H-1B Cap Is Filling Up Very Quickly (and I'm going to lose the office pool)

USCIS posted current cap counts on May 12, 2006 and again on May 16, 2006.On May 12, 34,808 of the 65,000 available H-1B numbers for fiscal year 2007had been used. On May 16, 39,445 numbers had been used. That is nearly 5,000new H-1B cases over 4 days, and May 13-14 was a weekend. So actually, almost5,000 H-1B numbers were used up in two business days. At this rate, the capcould be reached by the end of May. Anyone who wishes to file an H-1B petitionfor an October 1, 2006 start date should do so immediately.

Department of State Issues Additional Helpful Guidance on Issuance of Student Visas

The Department of State has been issuing a series of cables to guide ConsularOfficers in issuance of F-1 student visas for what is anticipated to be a busy F-1application season this fall. As previously reported, the Department issued acable changing the earliest issuance and admission dates for F, M, and J visas to120 days before the program start date listed on their I-20s.

Most recently, the Department of State issued a cable in May 2006 stating thatfor students whose visa issuance is likely to be delayed due to security clearances,consular posts may accept applications for adjudication and processing evenbefore the 120 period prior to the program start date listed in their I-20s.However, visas may not actually be issued until 120 days before the start ofstudies.

Also previously reported in Immigration Newswire, the Department of Stateissued a cable providing guidance on determining whether or not F-1 visaapplicants have immigrant intent.

Department of State Comments on Movement of Immigrant Visa Numbers

Employment-based visa numbers for the "worldwide" category are current for allpreference categories except Third Preference ("EB3"). (Employment Based Firstand Second Preference numbers are still retrogressed for India and China). At aMarch 23, 2006 meeting with the American Immigration Lawyers Association,the Department of State said that demand for EB3 visa numbers in March wasexpected to exceed the total for the previous three months combined, and thatfurther retrogression could not be ruled out. However, the June 2006 VisaBulletin shows that the EB3 workdwide priority date has moved forward fromMay 2001 to July 2001. It is uncertain whether there will be further retrogressionof EB3 numbers this fiscal year. The new fiscal year will begin on October 1,2006.

Visa numbers in the EB3 "Other Worker" category have become "Unavailable"and will remain so for the rest of the Fiscal Year, until October 1, 2006.

The June 2006 Visa Bulletin also shows that the Family Based "2A" preferencecategory, for spouses and children of permanent residents, will retrogress inJune. The Visa Bulletin states, "it has been necessary to retrogress the F2A cut-offdate for all chargeability areas except Mexico. This has been done in an effort tohold the issuance levels within the applicable annual numerical limits for theaffected categories. Further retrogression of the F2A category cut-off date is likelyfor July."

For more information about how to read the Visa Bulletin, see our articleentitled, "Immigrant Visa Preference Categories Explained."

Department of State Clarifies that 2-Year Foreign Residency Requirement Does Not Apply to a Change of Status to E-3

J-1 visas are issued to participants in the exchange visitor program. TheDepartment of State maintains Skills Lists. Each country has a Skills List settingout the professions for which there are national shortages of skilled workers. If aJ-1 exchange visitor enters the U.S. for study, training, or participation in aprofession listed on his or her home country's Skills List, he or she will be subjectto a 2-year foreign residency requirement following conclusion of the J-1program for which he enters the U.S. J-1 visa holders must either complete the 2-year foreign residency requirement prior to applying for permanent residence orchanging status to H-1B or L-1, or else obtain a waiver of the residencyrequirement.

The new E-3 visa category for Australian nationals is very similar to H-1B statusexcept that it applies only to nationals of Australia as well as their spouses andchildren. The E-3 principal nonimmigrant must be coming to the United Statessolely to perform services in a specialty occupation. Unlike H-1B status, nopetition needs to be filed with USCIS prior to issuance of an E-3 visa by anAustralian Consulate. Also unlike H-1B status, the E-3 category does notspecifically provide the visa holder with "dual intent." In addition, theDepartment of State has clarified in an Advisory Opinion that INA 212(e) doesnot bar a J-1 nonimmigrant who is subject to the two-year foreign residencyrequirement from changing status to E-3. However, upon conclusion of a stay inE-3 status, those aliens subject to the 2-year foreign residency requirement willeither have to leave the U.S. for 2 years, or else have a waiver of the 2-year foreignresidency requirement in place at that time.