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Immigration Issues/H1B cap and H1B1 set asides


Hello sir,

I graduated with a master's degree in business from a university in the US in May 2007. My OPT started on July 25, 2007 and now I will start working for a company that will file my H1B application after October 1st, 2008. In this case this application would be for FY2009 and this means I can start working on H1b only after October 1st,2008. However, I heard that every year certain numbers of unused H1B1s are added to H1B cap. Here is the explanation that I have found on the internet:

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H-1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding theremaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable. Because unused H-1B1 visas for FY 2006 have been already allocated in this manner,there will be no additional later H-1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007. This allocation of FY 2006 H-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal.

I am sorry but I am having hard time to understand what it means even though I read it many times. Now I am on OPT and my question is " Is there any way for me to file my H1B application in October 2008 for the fiscal year 2008? I mean, can my company file my H1B application by taking advantage of those unused H1B1 visas after October 1st, 2008 and by this way can I start working in October 2008? Or how are those unused H1B1s given to only Chile/Singapore citizens next year?

Thank you very much.

Salih: It is only available for Chile/Singapore citizens. The other exception to the quota is if you get employed by an University or other organization that is exempt from the quota. I also want to point out that based on what you stated, your OPT will end in July 2008 (counting the the 60 day grace period) there will still be a gap before the Oct'2008 start date. So you need to figure how you are going to overcome this gap.
Ramasamy Krishnan

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Ramasamy Krishnan


Immigration particularly business immigration and National Interest Waivers.


I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan,

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