H-1Bs and the Fast Approaching Cap

October 1, 2003 marked the start of the U.S. Government’s 2004 fiscal year and a lowering of the H-1B visa cap form 195,000 visas to 65,000 visas. The demand in previous years for specialty workers in the H-1B visa category far outstripped the number of available visas. Congress attempted to temporarily remedy the situation by raising the number of H-1B visas to 195,000. This number was far more acceptable, and the few years in which the cap was set at 195,000 there were enough visas to meet the demand. The demand for this type of visa has not diminished by much and the cap is fast approaching. Reeves & Associates has received several questions about this cap and its impact on H-1B visa applicants. The rest of this column goes over these very important questions.

When will the USCIS run out of H-1B visa numbers?
In the past, when the visa numbers were at 65,000, the cap was reached by March or April. Many immigration practitioners agree that the number of H-1B petition filings has not reduced much and is very close to the level when the cap was last set at 65,000. Using this as an indicator, many of us anticipate the cap to be reached by March or April at the latest.

What does it mean when the H-1B cap is reached?
This means that if an employer is petitioning to change your status to H-1B (for example from student or tourist status to H-1B), and the petition is pending at the USCIS when the cap is met, the change of status cannot be granted.

The USCIS can still approve the underlying petition but it will set the employment start date for October 1, 2004 when the 2005 fiscal year starts.

If I get an October 1, 2004 start date will I be able to remain in the U.S. legally?
You will only be able to remain in the U.S. if the previous status you were admitted in was valid until October 1, 2004. For example if you entered as a tourist and your I-94 card said your status was valid until October 1, 2004 or later, you would be able to remain in the U.S. You will not be allowed to work until October 1, 2004 and only if you were granted a Change of Status as well.

For students who are changing status to H-1B, the situation may be different. In the past the legacy INS passed a regulation allowing students who just graduated to remain in the U.S. and start working on October 1. It is unknown if the USCIS will provide the same benefit this time.

What is the difference between Change of Status and an Approved Petition?
The H-1B is a petition submitted by an employed on behalf of an employee. It basically requests two things. First, it requests that the USCIS approve its position as an H-1B occupation. Second, if the employee is in the U.S. in another status, it requests that the employee’s status be changed to H-1B.

When the cap is reached, the USCIS can still approve the first portion, but it does not have authority to approve the change of status since there are no H-1B visas available. In this scenario, the USCIS typically issues an approval of the H-1B petition portion with a validity period beginning on October 1. It does not grant a change of status. This means the employee can apply for an H-1B visa on October 1st at a U.S. Consulate and then enter the U.S. to work. If the employee is in the U.S., he would have to leave the U.S. and return with a new H-1B visa on October 1st.

I am in H-1B status now and I have filed an extension or I will be filing an extension. Will I be in danger of missing the cap? Will I go out of status?
No. The H-1B cap only applies to new H-1B petitions. If an employee is already in H-1B status and is being petitioned by the same employer or even a new employer, that employee is not subject to the cap.

I am not in H-1B status now. There is an employer who is willing to sponsor me. What should I do with the cap end approaching?
You should begin processing the H-1B petition as soon as possible. The longer you delay, the closer you are to not getting a visa number. The USCIS also offers a premium processing service which allows you to pay an extra $1000 and your H-1B will be adjudicated in 15 days and not the four to six months of normal processing.

I have an H-1B petition processing under the USCIS’s normal processing. It’s not fair that those who pay premium processing can file after me and take my H-1B visa number. Is there anything I can do?
You can always convert a regular processing case to a premium processing case. The USCIS has stated that it will halt premium processing cases as the cap nears its end. This is supposed to keep those who file later from taking numbers from those who filed earlier.