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September 17, 2004

US H-1B Visa Cap for 2004-05 fiscal year almost reached

The H-1B U.S. visa is one of the cornerstones of the US scientific and research community.  The H-1B visa is a nonimmigrant classification used by an alien (i.e. non U.S. citizen) who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.  Congress has tightened up the number of H-1B visas that are to be issued in the coming years and it appears that the opportunity for the 2004-05 fiscal year may be drawing to a close.

Thanks to the law firm of LeClair Ryan Flippin Densmore for the following informational bulletin relating to H-1B Visas:

The U.S. Citizenship and Immigration Services (“USCIS”) recently announced that as of mid-August it has received 45,900 H-1B visa petitions that will count against the annual cap for the next fiscal year, i.e., October 1, 2004 through September 30, 2005 (“FY 2005”).  As you will recall, Congress mandates that the USCIS approve only 65,000 petitions for new H-1B employment in FY 2005.  Thus, in the next few weeks (if not sooner), we expect the USCIS to announce that it will not accept any new H-1B petitions for first-time employment which are subject to FY 2005 cap. 

Reaching the H-1B visa cap less than one month into the fiscal year is unprecedented.  Unfortunately, it does not appear that there will be a legislative fix (if any) until after the November election. 

Based on this information, we strongly advise employers and employees to file new H-1B petitions as soon as possible and to consider using the Premium Processing program.  In particular, if you have any employees who are currently working in optional practical training as F-1 students, you should file an H-1B petition for them now, even if their employment authorization cards do not expire until next year. 

Please note that the following are not subject to the cap and the USCIS will continue to accept H-1B 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; and
    • Allow current H-1B workers to work concurrently in a second H-1B position.

The USCIS will also continue to accept petitions for new H-1B employment where the petitioner/employer is not subject to the annual cap.  To qualify as a “cap exempt” petitioner, the employer must be: (i) an institution of higher education or a related or affiliated nonprofit entity; (ii) a nonprofit research organization; or (iii) a governmental research organization.

For those companies and institutions who rely on H-1B workers -- time is slipping by for such an "unprecedented" occurrence.



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Posted by Douglas Sorocco at 05:02 PM.
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