March 22, 2004

USCIS to accept advance filing of H-1B cases for FY 2005

As of April 1, 2004, U.S. Citizenship and Immigration Services (USCIS) has begun accepting advance filings of H-1B cases for employment in Fiscal Year (FY) 2005, in accordance with immigration regulations that permit such petitions to be filed up to six months before H-1B employment is to commence.

These cases will count against the overall FY 2005 H-1B cap of 65,000 visa numbers. Because it is anticipated that next ear's H-1B numbers will be exhausted quickly, employers are urged to file petitions for FY 2005 employment as early as possible.

The annual cap on H-1B visas reverted to 65,000 in FY 2004, down from 195,000, and will remain so for FY 2005.

The overall numbers are further reduced by the Singapore and Chile Free Trade Agreements which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year.

Therefore, just 58,200 visa numbers will be available in the standard H-1B pool for FY 2005, though some unused Free Trade Agreement visas from 2004 may be recaptured and made available in the first six weeks of FY 2005.

However, the USCIS continues to process H-1B cases that are not subject to the cap, including: (1) amended H-1B petitions; (2) petitions for extension of H-1B status, whether for an existing or new employer (i.e., in sequential employment situations); (3) petitions filed in concurrent employment scenarios; (4) 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 (except where the H-1B employee moves from a cap-exempt nonprofit organization to a cap-subject for-profit company); (5) 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 (6) 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 and similar programs.

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