H-1 Cap Reached : FY2005
Posted Oct 08, 2004
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The big news this week, as visitors to MurthyDotCom and subscribers of the MurthyBulletin were informed in our NewsFlash posted on Sunday, October 3rd, is that the H1B cap has been reached for Fiscal Year (FY) 2005. This announcement was released at approximately 8pm EDT on Friday, October 1, 2004. All cases filed to reach the USCIS by October 1, 2004, will be processed against the FY2005 cap.
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What if I did not file my H1B yet?
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Any H1B cap-subject cases received after October 1, 2004 will be rejected and returned by the USCIS. The filing fees for those cases will also be returned. This means that, unless there is a change in the law, we are facing an entire FY without any H-1 cap petitions available from October 1, 2004 until October 1, 2005! This is the first time that the H1B cap has been reached at the very beginning of the new fiscal year.
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Who is unaffected by the H1B cap?
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The fact that the cap has been reached does not generally affect persons who are currently in H1B status. Unless one previously received the H1B from a cap-exempt employer, most employees on H1B status are able to extend their H1Bs, change employers, change the terms of employment, and obtain concurrent H1B employment. Extensions and amendments remain available to these H1B workers.
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What happens to students on F-1 D/S?
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Most individuals currently in their periods of one-year F-1 Optional Practical Training (OPT), following completion of their U.S. studies, graduated at the end of the school year in May or June and have OPT until June or July 2005. They will face the same concerns that were faced by students during FY2004 regarding how to cope with the gap between the end of OPT status and the start of the fiscal year on October 1, 2005.
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This matter and how it was treated historically and for the last fiscal year has been addressed in a number of articles available on MurthyDotCom, including our August 8, 2004 MurthyBulletin article, USCIS Memo Clarifies Status Gap Due to Cap Issues. The CIS can issue relief to students in this situation, but it requires a specific decision and announcement each year. Thus, we cannot promise or predict what may happen for such students in 2005. Students on OPT should be aware of this looming problem when they are only allowed to file an H1B petition on April 1, 2005, for a start date of October 1, 2005.
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Is there any hope of an H1B quota increase?
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Many are hoping that a significant number of U.S. employers will lobby their senators and representatives in Congress for an increase in the H1B quota because it is a hardship for employers to be expected to wait an entire year for employees to be allowed to begin work on H1B status. We at The Law Office of Sheela Murthy will continue to update MurthyDotCom and MurthyBulletin readers on this important issue as questions arise and solutions are proposed or explored.