Sindell Law Offices E-Min Newsletter (Vol. 2) - English Article #10

As we all know,  the U.S. Citizenship and Immigration Services (USCIS) has announced that, as of February 18, 2004, it will accept no further cases counting against the H-1B cap for Fiscal Year (FY) 2004.


We strongly advise employers to begin planning for H-1B employment for Fiscal Year 2005, since USCIS will on April 1, 2004 begin to accept advance filings of H-1B cases with employment start dates in FY 2005, which begins on October 1, 2004. It is conceivable that all FY 2005 cap numbers could be exhausted before the new fiscal year even begins.


The immigration regulations allow H-1B petitions to be filed up to six months before H-1B employment is to commence. Beginning on April 1, 2004 petitions with employment start dates of October 1, 2004 or later may be filed and these cases will count again the cap for Fiscal Year 2005.


Cases filed without premium processing may not be adjudicated until summer, but should make the quote and adjudicated to completion if filed before USCIS shuts off new FY 2005 filings.
At this point, filing via Premium Processing may not necessary but it may give
the applicant a certain comfort level. 


USCIS has not addressed the processing of F and J nonimmigrants seeking
changes of status to H-1B. F and J nonimmigrants are typically admitted to theUnited States for "duration of status," or "D/S," meaning that their admission to the U.S. does not have a specific end date.


The USCIS has the power to extend the duration of status of F-1 and J-1 nonimmigrants on whose behalf an application to change of status had been filed when the H-1B cap is reached. In 1999 and 2000, the most recent prior years in which the H-1B cap was attained, the legacy INS extended the duration of status until H-1b visa numbers were available. We have not heard
whether or not this practice has been adopted for this fiscal year and was not discussed in the USCIS's Federal Register announcement concerning the H-1B case cut-off. As a result, it is unclear whether the agency will extend the duration of status of current F-1 and J-1 nonimmigrants with pending H-1B
change-of-status applications.


If duration of status is not extended, one option for F and J students and
exchange visitors may be to change status to the B-1/B-2 visitor category.  In prior years, changes to the B-1/B-2 category were permitted to extend the duration of provided that
the foreign national was engaged in legitimate visitor activities. However,
changing to the B category can pose a number of problems if the person is filing an immigrant petition and there are also issues with SEVIS, the computerized I-20 system for F-1 and J-1 students.


Most nonimmigrants are admitted to the United States not for duration of status but for a specific period, with a determined end date as indicated on the Form I-94 Arrival Departure Record or Form I-797 Approval Notice. Normally,
the  applicant’s  period of status normally expires upon the expiration of the I-94 card, if the applicants files a change of status prior to the expiration of
his I-94, he is not deemed to have accrued illegal stay in the United States


We would like to remind our readers of the H-1B cases that do not count against the FY 2004 cap. USCIS counts against the cap only those petitions regarded as "new" employment. New employment generally refers to H-1B petitions that are filed for persons who are not currently in the United States in H-1B status


Amended H-1B petitions;


Petitions for extension of H-1B status, whether for an existing or new employer (i.e., in sequential employment situations);


Petitions filed in concurrent employment scenarios;


Petitions for new employment at an exempt organization, such as an institution of higher learning or a related or affiliated nonprofit entity, nonprofit research organizations, and governmental researchorganizations.


Petitions on behalf of individuals who have already been counted against the cap during the previous six years, unless the beneficiary would be eligible for a full six years of authorized admission at the time the petition is filed


Stay tuned for further updates..