DOS on Early Processing of H1B and H2B Visas
Posted Apr 16, 2004

The U.S. Department of State (DOS) issued a cable on April 2, 2004 addressing the anticipated rush of H1B and H2B visa applications immediately prior to the start of the new fiscal year on October 1, 2004. The cable advises consular posts that they may issue visas to fiscal year 2005 H1B and H2B beneficiaries earlier than the usual 10 days prior to the petition approval date. Without this change, some consulates potentially would experience an unmanageable number of visa applications, beginning September 20, 2004.

Background

As regular readers of MurthyDotCom and the MurthyBulletin know, the cap limiting the numbers of H1B and H2B visas that can be issued were reached in February 2004 and March 2004, respectively. See our MurthyBulletin articles, USCIS Announces H1B Cap Has Been Reached (February 20, 2004), and H2B Cap Reached (March 19, 2004), both available on MurthyDotCom. The government's fiscal year (FY) begins October 1, 2004. Thus, new cap numbers will be available at that time. H1B cases can be filed six months in advance, so many employers started in early April 2004 to file H1Bs with a start date of October 1, 2004. H2B cases can be filed 120 days in advance. Hence many businesses will start filing H2B cases in June 2004. The approval notices for these cases will contain a starting date no earlier than October 1, 2004. Many of the beneficiaries of the H1B petitions are F-1 students who will not be able to change status in the United States, as they have no way to maintain status until October 1, 2004. They will be required, therefore, to depart the U.S. and apply for their visas in order to reenter, unless the USCIS announces a policy allowing such students to legally remain in the U.S. in the interim. Because the H2B is a purely temporary status, many of those beneficiaries are currently outside the U.S. and will need visas to enter. Typically, visas are only issued ten days prior to a petition approval date.

Visas Will Contain a Specific Annotation

If the 10-day procedure were followed for H1B and H2B cases at this time, it would cause a flood of visa applications at the U.S. consulates in certain countries starting September 20, 2004. This would overburden the consulates and delay the influx of these needed workers. Consulates expecting a rush of H1B and H2B visa applications starting September 20, 2004 include Indian consulates and, possibly, the consulates in the U.K. and Ireland.

Under the Cable, consulates may issue visas to the fiscal year 2005 beneficiaries more than 10 days in advance. The earlier issued visas will bear a notation that they are "not valid until (ten days prior to petition validity date." The visas may be issued in advance, but cannot be used for entry until the stated validity date. The consulates are directed to take steps to assure that the visa holders and airline representatives clearly understand this limitation.

Consulates not expecting a rush of such cases are directed to follow the standard 10-day-in-advance policy regarding visa issuance. Individuals with FY2005 H1B- or H2B-approved petitions will have to check with their respective consulates to determine the earliest possible application date. The Cable does not set a date for starting this procedure; therefore, it appears to be effective immediately. Links to U.S. consulate and embassy websites are available through the MurthyDotCom consulates page. These may be the best sources of information regarding when each consulates will start accepting FY2005 H1B and H2B visa applications.

Conclusion

We are very pleased with this accommodation by the DOS. There was fear that delays in obtaining visas at the consulates due to the onslaught of visa applications would create further problems for persons with cap-subject FY2005 H1B and H2B petitions. This was an area of concern for many of our clients and readers. Hopefully, if the visa application appointments can start shortly, the process can be orderly and the H1B and H2B workers can be present and working in the United States on or soon after October 1, 2004.