H1B/J-1 Updates : Gap Extensions Possible, July 30, 2004 Deadline
Posted Jul 23, 2004
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The Office of Management and Budget (OMB) has completed its review on two H1B issues. The first issue pertains to the gap in status some are experiencing between the expiration of their F-1 Optional Practical Training (OPT) or J-1 exchange visitor student status until H1B status can be effective on October 1, 2004. This problem is due to the H1B quota having been met for the 2004 fiscal year (FY). The gap notice has been forwarded to the Federal Register for Publication. It provides important relief for many facing the gap, but requires that the H1B cases requesting a change of status be filed on or before July 30, 2004. The second issue involves the U.S. Department of Labor (DOL) with regard to H1B LCAs.
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USCIS F-1/J-1 to H1B "Gap" Issue
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The first issue is the anxiously-awaited notice, addressing the gap of time between the expiration of F-1 OPT or J-1 and the availability of new H1B numbers from October 1, 2004 under the 2005FY quota. This topic was covered in our June 25, 2004 MurthyBulletin article entitled, Students Facing Gap May Enjoy Relief, available on MurthyDotCom. Just before out going to publication with this, on July 22, 2004, the USCIS issued a preview of the notice that will be published in the Federal Register shortly. This notice provides that the USCIS will extend F-1 and J-1 status for those persons with requests to change status to H-1 filed no later than July 30, 2004, provided that the requested start-date of the H-1 status is no later than October 1, 2004. We note that filing a case by July 30, 2004 means that the case must reach the USCIS on or before that date. Mailing the case on that date will not be sufficient. We also note that the notice specifically states that it applies only to F-1 students and J-1 exchange visitor students. It does not apply to any of the other J-1 categories.
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We realize that this change generates many questions. We will provide detailed analysis following final publication in the Federal Register.
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DOL Issue
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The DOL review is a proposed rule regarding labor attestations in H1B cases. We do not have details on this issue.
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As some of you may know, H1B employer attestations appear on the Labor Condition Application required in each H1B case. A proposed rule is generally not implemented until there is a public comment period. The proposed rule will, at some point, appear in the Federal Register. After the public comment period, the DOL will review the comments, submit either an interim or final rule to the OMB for additional review, and ultimately publish the final regulation again in the Federal Register along with an effective date. As we know from PERM, this process can sometimes take years.