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May 5, 2004
OUTSTANDING H-1B ISSUES
Extension of Stay/Change of status for F and J Nonimmigrants
USCIS has not addressed the processing of F and J nonimmigrants seeking changes/extensions of status ? when his/her status expires prior to the start of the FY 2005 H-1B Cap on October 1, 2004. US immigration regulations allow USCIS to publish a Federal Register notice extending the duration of status of F-1 and J-1 nonimmigrants whose applications to change/extend status were filed after the cap has been reached, as long as it is prior to the expiration of the applicant's status. Therefore, if the applicant's status expired after any filing in the above situation, the notice would allow them to remain here until the start of the next fiscal year, as long as the filing is received by the USCIS prior to the expiration of his/her current stay. HOWEVER, no such notice has been issued this year, and the above stated would only apply if USCIS takes action in this regard.
Therefore, and in the absence of the above notice, an applicant must make sure that his/her status remains valid through October 1, 2004, for processing of an H-1B petition against the FY 2005 cap. One way to fill this gap is to obtain an extension in his/her current status, or temporarily change status to B-1/B-2 visitor category (although changing to this category may not be easily approved ? and may be impacted by other immigration or labor related filings such as a green card which may have taken place).
Cap Issues
USCIS has not yet indicated if and how it may make available unused visas based on miscounts or errors. We await this information. However, and to be completely safe, one should proceed under the pretence that USCIS may take no action in this regard.
H-1B Cases Not Subject to the Cap
H-1B cases that do not count against the cap will continue to be processed. Cases which count against the cap are those that are regarded as "new" employment.
New employment generally refers to H-1B petitions that are filed for foreign nationals who are not currently in the United States in H-1B status.
A transfer from a non-profit employer ? whose previous H-1 status never counted against the cap because of the exemption cited below ? to a for-profit entity ? is considered new employment and is therefore not a cap exempt case.
Exempt from the H-1B cap are the following types of cases:
- Petitions for extension of H-1B status;
- Amended H-1B petitions;
- Petitions filed in concurrent employment situations;
- Petitions for new employment at an exempt organization, such as an institution of higher learning or a related or affiliated nonprofit entity, nonprofit research organizations, and governmental research organizations;
- Petitions on behalf of individuals who have already been counted against the cap during the previous six years, unless the beneficiary would be eligible for a full six years of authorized admission at the time the petition is filed; and
- J-1 nonimmigrants who are changing status to H-1B and who have obtained waivers of the home country residency requirement through the Conrad 30 Program.
H-1B1 Visas under the Chile and Singapore Free Trade Agreements
Professionals in specialty occupations who are citizens or nationals of Chile or Singapore may be eligible for an H-1B visa under the above agreement. There are 1400 H-1B1 visas available for citizens of Chile and 5400 visas from Singapore ? which are set aside under the 65,000 cap ? and remain available.
OTHER OPTIONS
There may be other options for people to obtain status in the US other than under H-1B status. These options include E (Treaty Trader), J (Trainees, Experts, Scholars and Others), TN (Trade NAFTA for citizens from Mexico and Canada), O (Individuals with Extraordinary Ability) , and L (Intracompany Transferees)
Please contact our office if you have questions regarding any matter.
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