Immigration Attorney
Services & Fees

February 26, 2004

On February 25, 2004, the United States Citizenship and Immigration Services (“USCIS”) published a notice in the Federal Register explaining how it will process H-1B petitions for the remainder of Fiscal Year 2004 in light of its announcement on February 17, 2004, that there are a sufficient number of H-1B petitions pending at Regional Service Centers to reach the 65,000 numerical limit.

The USCIS will return any H-1B petitions, and accompanying filing fees, received after February 17, 2004, for first-time employment subject to the Fiscal Year 2004 annual limit. The USCIS will process all petitions filed for first-time employment if they were received by February 17, 2004.

The earliest date a petitioner may file a petition requesting Fiscal Year 2005 H-1B employment is April 1, 2004, six months before the earliest possible effective date in Fiscal Year 2005, October 1, 2004.

The H-1B numerical limit does not apply to H-1B petitions filed to extend status, change terms of employment, change employers, or work concurrently in a second H-1B position.

Individuals who have been counted toward an H-1B cap within the past six years are not subject to the H-1B cap unless they would be eligible for another full six years of admission (for example, unless they have been outside the U.S. for at least one year).

Also exempt from the H-1B cap are H-1B workers who will be employed by an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

If a petitioner wishes to withdraw a pending H-1B petition, or an approved H-1B petition for new employment, the USCIS instructs that petitioners must send a withdrawal request to the USCIS Service Center where the petition is pending, or where the petition was filed and approved.

The request must be signed by the petitioner, or an authorized representative, and include the filing receipt number, as well as the names of both the petitioner and the beneficiary.

The filing fees will not be returned.

The USCIS also announced in the Federal Register notice that it has considered cases currently on appeal in its determination of cases that could count towards the statutory cap, and will process approved petitions in the order that they were originally filed with the USCIS or the Immigration and Naturalization Service (“INS”).

Finally, the USCIS will not suspend its premium processing program, as previously anticipated.

What this means:

The USCIS has not yet addressed procedures for persons in F or J nonimmigrant status.

When the H-1B cap was reached in 1999, the legacy INS amended its regulations to provide that the agency could publish a notice in the Federal Register to extend the duration of status for certain F-1 and J-1 status holders when the H-1B cap was reached. The INS exercised this authority in 1999 and again in 2000. Until now, the cap had not been reached since 2000.

No notice has been published in the Federal Register granting extended duration of status to F-1 and J-1 applicants for change of status to H-1B. The USCIS has also not made clear how it will address the status of those who seek to change status to H-1B, but who are not in a status that is authorized for duration of status (“D/S”).

The USCIS has not yet addressed how it will handle any remaining H-1B numbers under the United States-Chile and the United States-Singapore Free Trade Agreements which are allotted 6,800 H-1Bs from the 65,000 limit.

In the past, the legacy INS assessed the numbers of H-1B petitions pending at the various Service Centers, and made efforts for the Service Centers with slower processing times to catch up to those with faster processing times in order to balance the processing of H-1B petitions throughout the country. The USCIS has confirmed that it is implementing the same procedure this year.

Although the USCIS suspended filings based on its belief that it has enough cases in the pipeline to meet the numerical cap, that count is not the result of an exact science. It is possible that some cases in the pipeline will not be processed before the cap is actually reached with approved cases. The USCIS has given no indication how it will handle any "leftover" cases. Similarly, if it turns out that fewer than 65,000 petitions are actually approved, it is not clear how (or even if) the USCIS will reopen processing or filing to fulfill the limit.

We will provide further information as it becomes available.