As of July 24, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each 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 are made available for H-1B use for the next fiscal year.

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 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap.

During the 90′s, the former Immigration & Naturalization Service (“INS”) frequently recognized a limited form of dual intent for TN nonimmigrants. The basis for this recognition was a 1996 letter from Ms. Yvonne LaFleur, then Chief of the Business and Trade Branch at the INS’ Benefits Division, which suggested that a TN professional could still have bona fide nonimmigrant intent even if he or she was the beneficiary of an approved immigrant petition, where the TN intended to seek consular processing rather than adjustment of status.

Initially, many (but not all) ports of entry followed this guidance. However, more and more ports of entry began to disregard it in later years. Fortunately, a 2008 letter from United States Customs & Border Protection (“USCBP”) appears to have resurrected this principle once again.

In a letter dated April 21, 2008, from Mr. Paul M. Morris, Executive Director, Admissibility and Passenger Programs, USCBP opined that the mere filing or approval of a Form I-140 immigrant petition on behalf of a TN nonimmigrant would not automatically constitute immigrant intent. A TN nonimmigrant and his or her dependents may have an intention to immigrate or adjust status at a future time but, as long as his or her intention at the time of admission is to be in the United States for a temporary period, he or she could be admitted. However, once the TN files an application for an immigrant visa or adjustment of status, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

Although opinion letters are not legally binding on USCBP, the 2008 USCBP letter once again supports the recognition of dual intent for TN nonimmigrants. In fact, it goes further than the 1996 letter in permitting dual intent even in cases where the alien intents to adjust status within the United States. Click here for the full TN article.