What is a "Cap?" The word "Cap" refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.

H-1B 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 perform 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 non-immigrants are subject to this annual cap.

H-1B Employer Exemptions H-1B non-immigrants 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 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. For each fiscal year, 20,000 persons who hold such credentials are statutorily exempted from the cap.

Update on Duplicate H-1B Petitions Filed Requesting Fiscal Year 2009 Employment On March 24, 2008, U.S. Citizenship and Immigration Services(USCIS)  published an interim rule in the Federal Register prohibiting H-1B petitioners from filing multiple petitions for the same prospective beneficiary in an effort to increase the chances of receiving an H-1B visa number.  The overall goal of the new rule is to ensure that prospective petitioners filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker.  USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one filing is discovered.  If multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner. As of June 6, 2008, USCIS has discovered that less than ½ of one percent of the total H-1B cap eligible petitions received involved duplicate or multiple filings for the same prospective beneficiary.

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 specialty. 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. The cap for H-1B1 for FY2009 has not been reached as of June 15^th 2008.

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 H-2B numerical limit set by Congress per fiscal year is 66,000. The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves.

USCIS notes that, as of June 18, 2008, Congress has not amended the "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) to cover FY 2009 (before 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). An alien who changes nonimmigrant status to H-2B is counted against the annual H-2B cap..

Lynch, Osborne, Theivakumar & Gilmore, LLC will be using our Blog as a tool to keep businesses and individuals updated on legal developments.  We are also publishing a monthly eNewsletter, also available on our website, that reviews legal updates throughout our legal system as well.  Our firm has over 30 years in collective experience practicing in a variety of legal disciplines.  You may also subscribe to the Blog with a RSS feed. Feel free to post comments to the articles.

In Roa v. LAFE, the Appellate Division held a terminated employee may sue for relation under New Jersey's Law Against Discrimination ("NJLAD") based on an employer's conduct after termination, even though the retaliatory acts (e.g., improperly cancelling health benefits and opposing unemployment benefits on false grounds) occured outside of the workplace and more than 2 years after termination.  This case follows the U.S. Supreme Court's 2006 opinion in Burlington Northern & Santa Fe Railway Co v. White, 548 U.S. 33 (2006). The Appellate Division explained that if the employee can show that the retaliation occurred within two years of filing suit, the case will not be time-barred pursuant to the "continuing violation" theory.  The Roa decision is a not so subtle reminder that employers must be especially vigilent regarding how its managers treat employees, even after the employment relationship has ended.