The
ABC’s of Immigration: The H-1B Cap
(Reported by Siskind’s Immigration Bulletin)
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On October 1, 2003, the allotment
of H-1B visas provided annually by Congress dropped from 195,000
to 65,000. On October 1, 2004, USCIS announced that it had received
enough applications to meet the 2004 cap. The new cap will begin
on October 1, 2005, and until then it will be impossible to obtain
new H-1b visas for cap subject employees. It is not clear how
the Congress and the employers will deal with this issue. Congress
is considering legislation that will expand the number of exemption
categories, which may alleviate the demand for capped H-1B visas.
Who is actually subject
to the cap?
Not every H-1B applicant
is subject to the cap. Visas will still be available for applicants
filing for amendments, extensions, and transfers unless they are
transferring from an exempt employer or exempt position and were
not counted towards the cap previously. The cap also does not
apply to applicants filing H-1B visas through institutions of
higher education, nonprofit research organizations, and government
research organizations.
When was the last time the
H-1B cap was hit?
The H-1B cap was last hit
on February 17, 2004 for the 2004 fiscal year.
What will happen to petitions
that were not filed in time?
USCIS will return all petitions
for first-time employment subject to the annual cap received after
the end of business on October 1, 2004. Returned petitions will
be accompanied by the filing fee.
Those cases that were filed
before the announcement issued by USCIS will be reviewed.
Can an applicant re-submit
an H-1B application?
Petitioners may re-submit
their petitions when H-1B visas become available for FY 2006.
The earliest date a petitioner may file a petition requesting
FY 2005 H-1B employment with an employment start date of October
1, 2006, would be April 1, 2006.
What will happen to the
petitions that do not count against the cap?
Petitions for current H-1B
workers normally do not count towards the congressionally mandated
H-1B cap. USCIS will continue to process petitions filed to:
• Extend the amount
of time a current H-1B worker may remain in the United States
• Change the terms of employment for current H-1B workers
• Allow current H-1B workers to change employers (unless
the beneficiary is transferring from a cap exempt employer to
a cap subject employer and was never counted towards the cap-
in that case the beneficiary will be subject to the cap)
• Allow current H-1B workers to work concurrently in a second
H-1B position
USCIS will also continue
to process petitions for new H-1B employment filed by applicants
who will be employed at an institution of higher education or
a related or affiliated nonprofit entity, or at a nonprofit research
organization or a governmental research organization. USCIS will
also continue to process H-1B petitions for workers from Singapore
and Chile consistent with Public Laws 108-77 and 108-78.
What will happen to F and
J visa holders who are beneficiaries of an H-1B petition?
In the past, INS (now USCIS)
had safeguards in place for those with F and J visa status. According
to 8 CFR Section 214.2 (f)(5)(vi), if it can be determined that
all of the H-1B visas will be used before the end of the current
fiscal year, the director of USCIS can extend the duration of
status of any F-1 student if the employer has timely filed an
application for change of status to H-1B.
To be eligible for this extension,
the nonimmigrant must not have violated the terms of his or her
nonimmigrant stay. An F-1 student whose duration of status has
been so extended shall be considered to be maintaining lawful
nonimmigrant status for all purposes under the Act, provided that
the alien does not violate the terms and conditions of his or
her F nonimmigrant stay. An extension made under this paragraph
applies to the F-2 dependent aliens.
8 CFR Section 214.2(j)(1)(vi)
has similar language regarding those in J status. If the USCIS
director can determine that all of the H-1B visas will be used
before the end of the current fiscal year, the director of USCIS
may extend the duration of status of any J-1 nonimmigrant if the
employer has timely filed an application for change of status
to H-1B.
To be eligible for this extension,
the nonimmigrant must not have violated the terms of his or her
nonimmigrant stay and must not be subject to the 2-year foreign
residence requirement in Section 212(e) of the Act. Any J-1 student
whose duration of status has been so extended shall be considered
to be maintaining lawful nonimmigrant status for all purposes
under the Act, provided that the alien does not violate the terms
and conditions of his or her J nonimmigrant stay. An extension
made under this paragraph also applies to the J-2 dependent aliens.
The Federal Register Notice
is available at:
http://www.aila.org/infonet/fileViewer.aspx?docID=705&index=0.
In FY 2004, USCIS provided
limited relief to F-1 visa holders but we will likely not know
until next spring what the USCIS will do for FY 2005.
Note: Physicians who received
a J waiver under the Conrad State 30 Program are exempt from the
cap.
What will happen if I am
not exempt from the cap and my current status expires after the
numbers run out?
It is unclear on the date
of publication how USCIS will treat those who are not exempt from
the cap but whose status will lapse before new H-1B numbers are
available. For many, other non-immigrant visas will be available
including H-2B visas (though those are likely to cap out in April),
J-1 trainee visas, E-2 and E-1 visas and TN visas.
An option available to many
this year will be filing for permanent residency. There are many
work-related green card applications that can be filed without
a time consuming labor certification. Now that concurrent filing
of I-140 and adjustment of status applications area available,
it may be possible to secure an employment authorization document
in a matter of a couple of months.
We advise people subject
to the cap looking for alternative strategies to consult early
with their immigration lawyers.
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