USCIS Announces H1B Cap Has Been Reached
Posted Feb 20, 2004

As we indicated in our February 18, 2004 NewsFlash, the USCIS announced on February 17, 2004 that the H1B cap has been reached for fiscal year (FY) 2004. As many MurthyDotCom and MurthyBulletin readers know, the cap has not been a concern for H1B applicants since FY2000. The reason for this is that the law provided for an increase in the H1B numbers available for the three fiscal years from 2000 to 2004. As we reported in our September 12, 2003 MurthyBulletin article, H1B Cap for Fiscal Year 2004, those favorable provisions have now ended. This 2004 fiscal year, the cap returned to 65,000 total H1Bs available. In that article, available on MurthyDotCom, we accurately predicted that the cap could be reached before the end of the second quarter. While we must wait for the USCIS to give some final answers on particular issues, we encourage our readers to be aware of the following.

USCIS Procedure for the Remainder of FY2004

In its press release, the USCIS indicated that it would process all petitions filed for first-time employment received by the end of the February 17, 2004 business day. All petitions that are subject to the cap and are received after February 17, 2003 will be rejected and returned without processing. The fee payments associated with these cases will not be cashed, and will be returned with the rejected packet. Petitions may be resubmitted no earlier than April 1, 2004 for persons who will begin work on or after October 1, 2004. The attempted filing of a petition after February 17, 2004 does not protect the beneficiary in any way or provide any immigration benefit. Unless authorized to do so in some other capacity, it is not permissible to simply remain in the U.S. awaiting the opportunity to file an H1B case in April.

Continued Processing for Non-Cap Cases

The USCIS will continue to process H1B petitions for persons who are filing for H1B extensions, amending the terms of their H1B employment, changing H1B employers, or requesting H1Bs for second employers. Further, not all H1B petitions for first-time H1B seekers are subject to the cap. H1B employees of institutions of higher education, or of related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations, as well as J-1 physicians granted Conrad waivers, are not subject to the cap. We do note that if an individual is changing from an H1B with an exempt employer to employment with a cap-subject employer, s/he is subject to the cap and will have to wait until the next fiscal year. It also appears that the 6800 H1Bs that were reserved for workers from Chile and Singapore have not been exhausted.

Previous Special J and F Rules

As we indicated in our September 12, 2003 article referenced above, the Legacy INS extended special benefits to J and F students in the past when the H1B petition was already pending at the time that the cap cutoff was announced. We are awaiting word from the USCIS as to whether they will continue this policy.

What to Do

Many persons are understandably confused about the cap and what it may mean for them. We recommend that you consult a qualified immigration attorney who can assess your individual facts to determine your options at this time. We encourage both individuals and employers to let Congress know how reaching the cap is harmful to U.S. commerce and negatively impacting the U.S. economy.