With H-1B cap reached questions abound - What to do now?

It is not clear how the Congress and U.S. employers will deal with 2004 H-1B visa cap being reach. Capitol Hill observers see little likelihood Congress will act soon to raise the cap and it is quite possible that the number will not be raised at all. There are also proposals to carve-out more exemptions from the cap. This leaves many with questions.

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.

What will happen to petitions that were not filed in time?

The USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business on February 17, 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 fiscal year 2005. The earliest date a petitioner may file a petition requesting an H-1B for employment with an employment start date of October 1, 2004, would be April 1, 2004.

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)

*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 laws passed on the matter.

What will happen to F and J visa holders who are beneficiaries of an H-1B petition?

In the past, the government had safeguards in place for those with F and J visa status. According to current law, 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.

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 law, 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.

The situation is similar regarding those in J status. The USCIS director can also extend the duration of status of any J-1 nonimmigrant.

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 of the law. 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 law, 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.

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 are available. For many, other non-immigrant visas will be available including H-2B visas, 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. Also, we expect that without Congressional action, the cap will be reached even earlier next year. So acting early to get a visa under the allotment for 2004 to 2005 is very important.

Greg Siskind is a partner at Siskind Susser, a national immigration law firm. He can be reached at gsiskind@visalaw.com.

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