From Jennifer Leavitt-Wipf,
Your Guide to Immigration Issues.
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Mar 11 2004

If you are reading this, you are probably aware that H-1B visas are work visas which rely on employer sponsorship by an American or U.S.-based company. Foreigners who apply for an H-1B must be going for a job that matches their 4-year college degree, or the equivalent. Only a certain number of foreigners are allowed to apply for an H-1B visa each year. When that number has been reached, it's called a "cap," and it means that no more applications can be taken for this year.

There has been much controversy over H-1B visas. Opponents claim that American companies get cheaper labor from outside the U.S., denying jobs to qualified American workers. They say that H-1Bs should be much better regulated and that fewer should be available. Companies, especially high-tech ones, are saying that they can't fill their jobs and that the very survival of their companies depend on H-1B workers. For a while, more H-1Bs were allowed because of the surge in high-tech jobs. Recently, following the Wall Street slump and the dot.com crash, the lower rates of new jobs have been an issue. All of these factors play a role in the rationale behind the annual limit, or cap, on H-1B visas.

Today, the Citizenship and Immigration Services (USCIS), formerly the Immigration and Naturalization Services (INS), announced that the H-1B cap has been met, and they have posted new H-1B procedures as well.

The CIS has received enough H-1B petitions to meet this year's congressionally mandated cap of 65,000 new workers. After today, USCIS will not accept any new H-1B petitions for first-time employment subject to the FY 2004 annual cap.

USCIS has implemented the following procedure for the remainder of FY 2004:

-USCIS will process all petitions filed for first-time employment received by the end of business today.

-USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business today.

-Returned petitions will be accompanied by the filing fee.

-Petitioners may re-submit their petitions when H-1B visas become available for FY 2005.

-The earliest date a petitioner may file a petition requesting FY 2005 H-1B employment with an employment start date of October 1, 2004, would be April 1, 2004.

Note: Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

-Extend the amount of time a current H-1B worker may remain in the United States;

-Change the terms of employment for current H-1B workers;

-Allow current H-1B workers to change employers;

-Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

As many of you know, on March 1, 2003, U.S Citizenship and Immigration Services became one of three legacy INS components to join the U.S. Department of Homeland Security. USCIS is charged with fundamentally transforming and improving the delivery of immigration and citizenship services, while enhancing our nation's security. The change is confusing for some, after so many years of the agency's infamous name as the Immigration and Naturalization Service, or INS, so we continue to make the reference for clarification's sake.