Immigration Attorney
Services & Fees

June 21, 2004

Representatives from the United States Citizenship and Immigration Services (“USCIS”) Central Office indicated the possibility of allowing discretion to approve H-1B, change of status cases, where the current nonimmigrant status expires before October 1, 2004, the first day of FY 2005.

This would mean that an F or J nonimmigrant with a status expiring before October 1, 2004, may receive approval of an H-1B change of status petition even though his or her status expired before the earliest date on which H-1B status my be granted.

This has not been the current practice at the Service Centers since the FY 2004 cap was reached in February, but a policy of this type was implemented in 1999 and 2000, the last two years when the H-1B cap was reached.

Extending status F and J nonimmigrants requires official notice in the Federal Register, and on June 18, 2004, the Department of Homeland Security (“DHS”) sent to the Office of Management and Budget (“OMB”) a draft notice entitled, "Supplemental Information Regarding the H-1B Numerical Limitation for FY 2004 Affecting F Nonimmigrants."

This appears to be the long-awaited notice to extend the status of F-1 students seeking change of status to H-1B until new H-1B numbers are available on October 1, 2004.

The OMB generally has up to 90 days to review a notice or regulation. It is then either revised, withdrawn, or published in the Federal Register. When notices do not involve regulatory changes, such as in this case, OMB review takes less than 90 days.

What this means:

It remains an open question whether the status of other nonimmigrants, such as J-1 exchange visitors will be affected.

It is also unknown whether H-1B change of status petitions that have already been denied will be reopened.

Until notice is published in the Federal Register, automatic extensions of stay through October 1, 2004, will not be granted by the USCIS. We will provide more information as soon as it becomes available.