H-1B Visas: What Happens When the Cap Is Met?

Chat with Carl Shusterman, Esq. - Transcript

Jennifer Wipf: Good evening! This is Jennifer Wipf, your Sr. Editor of Cultures, Immigration & Globalization at Born Abroad. We are very pleased to have leading immigration attorney Carl Shusterman with us this evening, hosting this chat, "What Happens When the H-1B Cap Is Met?" Please ask questions by hitting "private chat" and highlighting ImmigrationADM with your mouse.

Jennifer Wipf: Welcome Carl! We are glad to have you. Everyone, please remember that these questions and answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: Good evening and hello to everybody in the chat room.

Question #1:   I am a 3rd year medical resident (on H-1B). Does the cap law apply to me if my future employer is going to sponsor me for H1-B extension and then Green Card?

Carl Shusterman:   The cap applies to new petitions only. Since you are already in H-1B status, the cap will have no effect on your status whatsoever.

Jennifer Wipf: This seems to be a popular theme tonight. Someone else has a similar questions.

Question #2: How does the cap being met apply to me if I am transferring my H-1B from one employer to another?

Carl Shusterman: No effect - see response above :)

Question #3: If I sent my H-1B application in January and haven't heard yet, and the cap is met before I do hear, do I have to apply again?

Carl Shusterman: No! :)

Question #4: If my labor certification was already approved, I received notice 2 weeks ago, will the cap prevent the application from going through?

Carl Shusterman:   The cap is on H-1Bs, a temporary visa category.  Reaching the cap has no effect on the progress of your application for labor certification, visa petitions, or your application for adjustment of status to permanent residence.

Question #5: If the H-1B cap is met and I've missed the boat, and my L-1 visa is about to expire, do I now have to go back home and wait many months until it is O.K. again to apply for H-1B?

Carl Shusterman: If INS uses the same procedures as they did last year See:

http://shusterman.com/hcap99regs.html  

you can apply for a change of status from L-1 to H-1B even after the cap is reached, however, your H-1B start date will be either October 1st, 2000, the first date of the fiscal new year, or the effective date of any new legislation raising the H-1B cap, which is passed by Congress and signed by the President. The catch is that you will not be authorized to work in the United States between the time that your L-1 expires and the start date of your H-1B. :(

Jennifer Wipf: We have several people concerned about status during a pending application. Here's on question:

Question #6: I am on a student visa, about to run out, hoping my H-1B will come through quickly. I just heard I can't transfer from F-1 to H-1B. Will I have to leave? What if the cap is met before I get approved? Will they let me back?

Carl Shusterman: Students in F-1 status are allowed to change to H-1B status. In fact, last year, The INS published special regulations assisting F-1students and J-1 Exchange Visitors, who wanted to change their status to H-1B. See:

http://shusterman.com/fj-hrule.html

Question #7: But INS site says I can't transfer without leaving the country if my school skills areresponsible for qualifying me for the H-1B. Is that true?

Carl Shusterman: Not true.

Jennifer Wipf: Thank you for setting that straight Carl. Hmm. Maybe he's confusing the F-1 with the M-1 Student Visa? Anyway, here's the next question:

Question #8: How long one can stay after 6yrs expiration of H-1B when I-140 is pending?

Carl Shusterman: When your H-1B expires unless you apply to change your status to another temporary status, like B-2 or F-1, INS regulations give you ten days to depart the United States. However, as long as you don't accumulate 180 days or more of unlawful presence, you can still adjust status under 245(k) as long as your I-140 is approved and your priority date is current.

If you do remain in the United States in unlawful presence for 180 days or more, not only do you lose your eligibility to adjust your status under 245(k), but if you apply for an immigrant visa abroad, you are subject to the 3 year bar of inadmissibility. Of course, if your priority date is before January 15th, 1998, you can still adjust status, under Section 245(i), as long as you pay $1,000 fine.

Question #9: I am currently on an H-1B visa and also pursuing my MBA. What should I do when I reach the 6 year cap before my MBA is finished?

Carl Shusterman: Since you didn't mention applying for permanent residence, I'll assume that you have not applied. My advice is to finish your MBA, then apply for a change of status from H-1B to F-1 student. It's not a slam dunk, but since you have not applied for permanent residence, the INS may approve your application.

Question #10: I have applied for I-485, before applying, my H1-B was valid till 09-2001. Will the H-1B Will still be valid till 09-2001?

Carl Shusterman: The INS issued regulations concerning H and L visa holders who applied for Adjustment of Status in June 1999.

Basically, when you applied for Adjustment of Status, you had a choice:

You could either remain on H-1B status, or you could apply for an Employment Authorization Document (EAD) and Advance Parole. Unless you used your EAD and Advance Parole, your H-1B status is valid until the date specified on your form I-94.

Jennifer Wipf: Here's another million dollar question:

Question #11: Any news on the H-1B law and when it will get to the president?

Carl Shusterman: With regard to the H-1B cap bill (S.2045) that recently was reported favorably on a 16-2 vote by the Judiciary Committee,   our sources on Capitol Hill expect a Senate vote during the first 2 weeks of April.  In the House of Representatives, Representative Smith has introduced a bill which pretends to raise the H-1B cap, but which would, in reality, severely damage the existing H-1B program. To read the complete text of the bill, see:

http://shusterman.com/hr3814.html .

Representative David Drier (R-CA), and Zoe Lofgren (D-CA) are expected to introduce a bill which is nearly identical to S.2045 in the House of Representatives later this week. As you can see, there are many battles to be won and lost before the H-1B cap bill reaches the president's desk. A spokesman for the White House indicated that the President would sign a bill that is "reasonable" and "balanced."What makes me a little nervous about this statement, is that the President's spokesman used the same language in speaking to a reporter for the New York Times as Representative Smith did in his Press Release commenting on S.2045.

Are these guys singing from the same hymn book or what?

Question #12: What is current status (how long?) for renewing H-1B?

Carl Shusterman:   Depending on which Service Center you are submitting your application to, approximately 60 days.

Question #13:   Will the new passed bill in H1 numbers be in effect this year?? Will this effect the cap?

Carl Shusterman: Yes. S.2045 would go in effect immediately upon being signed by the President. However, should Representative Smith's Bill pass, the new cap would not go into effect until the Labor Department issues the long-awaited regulations under the 1998 Bill which raised the H-1B cap to 115,000.

Question #14: My notice date is 1/26/00 on my application. Will I make this cap?

Carl Shusterman: There is no possibility that approvable applications submitted to INS in January and February of this year will be affected by the cap.

Question #15: After the cap, What happens to those cases which have received RFE?

Carl Shusterman: Once the cap is reached, all pending applications including those where the INS has issued a Request For Evidence (RFE), will, if approved, receive start dates of October 1st, 2000 or the effective date of any new law raising the H-1B cap, whichever is earlier.

Question #16: I heard that I can stamp a new H-1B visa without leaving US. Is that true? Where can I do it?

Jennifer Wipf: Mr. Shusterman will answer this question and then must leave, unfortunately. He has stayed overtime and was kind enough to answer some questions unrelated to the H-1B cap as well. :)

Carl Shusterman: You can stamp the H-1B within the US at the following address:

US Dept. of State / Visa, PO Box 952099
St. Louis, Missouri 63195-2099.

For more information see:

http://shusterman.com/toc-temp.html

and scroll down to the bottom of the page, and click on "Revalidation of Visas in the US"

Question #17: Does that mean the RFE has to reach before the cut off date ?

Carl Shusterman: If your response to the RFE is received by the INS before the cap is reached, you have a chance of having your petition approved under the existing quota.

Good luck!! :)

Jennifer Wipf: O.k., it is time for Mr. Shusterman to leave. Good night Carl. Thank you for coming.

:)

Carl Shusterman: Good night all! Happy trails.

click here for a quick & easy FAQ style recap

 

 

Remember to follow-up with these popular and informative articles:

H-1B Visa Page compiled by Carl Shusterman, Esq.

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So What's Going On In the Tumultuous H-1B World?  by Jennifer Wipf.                                       

 

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