February 18, 2004

H-1B Cap Reached - What Now?

The U.S. Citizenship and Immigration Services (USCIS) announced after business hours on February 17, 2004 that it has received enough H-1B petitions to meet this year's cap of 65,000 new workers. USCIS will not accept any petitions received for new employment for the 2004 fiscal year after the close of business on February 17, 2004.

The USCIS has implemented the following procedures for the remainder of FY 2004:

• USCIS will process all petitions filed for first-time employment received by close of business February 17, 2004.
• USCIS will return all petitions and filing fees for first-time employment subject to the annual cap received after February 17, 2004.
• Petitioners may re-submit their petitions when H-1B visas become available for FY 2005. Cases can be submitted six months in advance of the start date. Thus, cases with October 1, 2004 start dates can be filed beginning April 1, 2004.

The restrictions above only apply to petitions being applied for individuals who will be requesting H-1B status for the first time. The following types of petitions do not count against the cap and will and USCIS will continue accepting and adjudicating these petitions:

• Petitions for changes in employment, or for concurrent employment, for current H-1B workers, unless the worker is changing from an employer who is exempt from counting petitions against the cap to one who is not.
• Petitions for extension or amendment of H-1B status.
• Petitions for new employment at an "exempt" organization, e.g. institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations.
• Petitions for H-1B1 workers under the Singapore and Chile Free Trade Agreements.

To date the USCIS has not released information or guidance on the many other concerns raised by the cap. Onc of the issues many foreign nationals will be facing is the impact of the cap on the status of individuals who are in the U.S. as students in F-1 status completing their optional practical training (OPT). For many F-1 students whose OPT employment authorization will be ending between now and October 1, 2004, there will be a gap in employment authorization. However, it is not yet clear whether an F-1 individual’s status in the US will be protected between the time OPT ends and H-1B status takes effect. USCIS has not indicated whether provisions will be made to bridge this gap in status, which may negatively impact eligibility for changes of status, travel and obtaining permanent resident status in the future. In previous years, when reaching the cap was an issue, provisions were made to bridge this gap in status.

GT will continue to provide updates on these issues as they become available.