Sindell Law Offices E-Min Newsletter (Vol. 2) - English Article #9

  The following is a synopsis of a State Department Memo.


As we have written, the Immigration service has announced that they have received sufficient petitions to meet the congressionally mandated caps for H-1B (65,000) and H-2B (66,000) new workers. On February17, 2004, USCIS stopped accepting new H-1B petitions subject to the FY-2004 annual cap.


The Consulates can continue to issue H-lB against. petitions that they receive. Thus, petitions approved by THE IMMIGRATION SERVICE fall within the cap and the corresponding visa applications can be processed to conclusion. THE IMMIGRATION SERVICE will resume adjudicating petitions in April or May for work that starts on or after October 1, 2004. These petitions will count against the FY05 cap. As THE IMMIGRATION SERVICE will continue adjudicating such petitions well in advance of October 1, a large pool of beneficiaries may accumulate during the summer and apply just before the start of the new fiscal year. THE IMMIGRATION SERVICE regulations prohibit the entry of an alien on an H-1B more than ten days prior to the start of his or her authorized employment. Therefore, the Consulates typically prohibits the issuance of H-1B visas more than ten days prior to the petition validity date -- September 20 in the case of H-1B's with an October 1 start date. Due to a potentially large volume of approved I-129H's with a beginning validity date of October 1, however, the failure to accept and process these applications prior to September 20 could lead to a significant workload burden on some of the larger H-1B and H-2B issuing consulates.


Consulates that anticipate a large volume of H-1B or H-2B applicants in the lead-up to FY 2005 may issue visas to FY 2005 I-129H beneficiaries prior to September 20, 2004. Such visas must be annotated "not valid until (ten days prior to petition validity date)". Consulates should make every effort to educate local immigration and airline representatives regarding the deferred validity of these visas in order to avoid inappropriate boarding of the visa holders. Additionally, Consulates must ensure that the H-1B or H-2B holder is clearly informed of the validity date of the visa. A letter or stamp in the NIV holders' passport should clearly state this deferred validity.