H-1B Cap Reached - What Now?

The U.S. Citizenship and Immigration Services (USCIS) announced after business hours on February 17, 2004, that it received enough H-1B petitions to meet this year’s cap of 65,000 new H-1B 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 implemented the following procedures for the remainder of FY 2004:

• USCIS processed 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 start dates of October 1, 2004, can be filed beginning April 1, 2004.

The restrictions above apply only to petitions for individuals requesting H-1B status for the first time. The following types of petitions do not count against the cap 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 (i.e. educational institutions, nonprofit research institutions, governmental research organizations) to one who is not exempt. Petitions for an extension or amendment of H-1B status.
• Petitions for new employment at an “exempt” organization, i.e. institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organiza-tions.
• Petitions for H-1B 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. One 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 U.S. 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.

Return to GT Immigration Observer Table of Contents