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Recent developments have caused serious potential problems for people
seeking certain H-1B benefits. H-1B status is a popular non-immigrant
status for those seeking employment in a specialty occupation. H-1B status
allows for persons who qualify in such a field to live and work in the
U.S. for an extended period of time. The right to live (but not work)
in the U.S. is extended to the H-1B worker’s spouse and children
as well. For more information on H-1B status in general, please click
here.
One of the problems with obtaining H-1B status is that only a limited
number of H-1B visas are available for any given year. This is known as
the “H-1B cap”. Once the number of available H-1B visas for
a given year has been used, no new H-1B visas will be granted until the
beginning of the next fiscal year. The fiscal year runs from October 1
until September 30 of the following year. The U.S. Citizenship & Immigration
Services (USCIS) determines when these petitions apply to the H-1B cap
on a first-come-first-take basis.
For the past few years, the cap had not been met, so no one ever had a
problem getting H-1B status because of too few available visas. However,
for Fiscal Year 2004, which began on October 1, 2003, the H-1B cap has
already been met. The USCIS has announced that they will not accept any
petitions seeking H-1B benefits that would affect the H-1B cap with a
starting date before October 1, 2004. Moreover, they will not accept any
petitions seeking H-1B benefits that would affect the cap until April
1, 2004. While the H-1B cap will not affect all persons seeking H-1B benefits,
the fact that the cap has been reached does pose a serious problem for
many aliens seeking H-1B benefits. Not only does it prevent many of them
from obtaining H-1B benefits for many months, but also, it can be expected
that there will be a flood of H-1B applications coming in April of 2004
as applicants seek not to be left out of Fiscal Year 2005 as well.
This will affect those seeking H-1B benefits as follows:
Those already in H-1B status.
The H-1B cap only applies to those who had not been counted toward the
H-1B cap within the past six-year period. People who had been counted
toward this status may extend, transfer to other employers, and/or add
concurrent employment under H-1B status without concern for the H-1B cap.
That is their petitions would not be denied because of unavailability
of H-1B visas.
It should be noted, however, that not all of those who are currently in
H-1B status have already been counted towards the cap. There are certain
types of employment that are H-1B cap exempt; that is the H-1B holders
who obtain status for these types of employment are not counted toward
the cap. (These types of employment are more particularly described below.)
As acquiring H-1B status for such employment does not count toward the
cap, those who are seeking to transfer to a type of employment that is
subject to the cap, i.e., non-cap-exempt, would be counting themselves
toward the cap for the first time, unless they had been previously counted.
For instance, H-1B holders who are researchers in universities were not
subject to the quota cap when they obtained their H-1B status. However,
if such a researcher seeks an H-1B transfer to work in a private (for-profit)
company, this would be considered as being counted toward the cap for
the first time. Therefore, this person’s H-1B transfer would be
denied if it sought a transfer to begin before the next fiscal year.
Example: Todd is a researcher in a university. He is under H-1B status.
Because of the nature of his employment, he was not subject to the H-1B
cap when he first applied for H-1B status. Now, Todd would like to change
jobs and work for a private company. This type of work is not cap exempt.
As a result, Todd’s application for transfer to the new job is subject
to the H-1B cap. If the cap has been met by the time the H-1B application
is filed, then the transfer application will be returned.
However, this only applies to persons who had not been counted toward
the cap within the past six years. If someone presently employed in a
cap-exempt employment had previously obtained H-1B status with non-cap-exempt
employment, then such person would have already counted toward the cap,
and thus would not need to worry about being counted again when the cap
has reached its limit.
Example: Rebecca first acquired H-1B status in 2000 through a private
(i.e. non-cap-exempt) employer. In 2002, she transferred her employment
to a cap-exempt university position. Now, in 2004 she would like to return
to work in the private sector. While she is transferring from cap-exempt
to non-cap-exempt employment, she has already been counted toward the
cap, so the cap will not affect her transfer.
Those who have been in H-1B status in the past, but are not in
such status at the present.
A person will not be counted toward the cap if he/she had been in H-1B
status within the previous six-year time period.
Example: Kim originally acquired H-1B status that is subject to the
cap in January of 1997, but decided to return to school in August of 2000
and thus changed status to F-1. In March of 2004, Kim wants to work again
in a specialty occupation. Kim may file for change of status to H-1B without
worrying about the H-1B cap, since she had already been in H-1B status
within the past six years and she does not need a new six-year period.
On the other hand, if Kim had originally started her H-1B employment in
August of 1994, she would have used up her full six years of authorized
stay at the time she changed to F-1 status. By March of 2004, she would
need to apply for a new six-year period of authorized stay, in which case
she would be subject to the cap. In another alternative, if Kim had changed
from H-1B to F-1 status before March of 1998, she would also be subject
to the cap as she has not been in H-1B status during the preceding six-year
period.
Those who are seeking H-1B status for the first time.
Everyone applying for H1-B status for the first time will be subject to
the cap, unless they seek H-1B status to do cap-exempt work. The following
types of work are H-1B cap-exempt:
1. work for an institution of higher education or a related or affiliated
nonprofit entity;
2. work for a government research organization or a nonprofit research
organization; and
3. work as a physician relevant to a J waiver on the basis of agreeing
to serve as a primary care physician in a Health Professional Shortage
Area (Conrad State 30 Program).
That is, an application for H-1B status filed by an employer seeking to
hire an alien in one of the types of work described above, would not be
subject to the cap.
Example: Pete is in F-1 status and seeks H-1B status to work for a
university. Even though the H-1B cap has been met, the application on
behalf of Pete should not be denied on the basis of the cap as Pete is
seeking H-1B ca- exempt work.
As explained above, however, a change to another employment that is not
cap exempt would make the application subject to the cap.
Those seeking H-4 dependent status.
The H-1B cap only applies to the H-1B principals, and not to their dependent
spouses and children (H-4 status). Therefore, an application to change
to H-4 status should not be denied on the basis of the H-1B cap being
met.
Example: Matthew is in F-1 status, but the full duration of his status
will soon expire. Matthew cannot find employment in a cap exempt area,
and he had never been in H-1B status before. Therefore the H-1B cap prevents
him from taking on H-1B status now. However, Matthew’s wife is already
in H-1B status. Matthew may apply to change his status to H-4 so he can
at least stay in the U.S. H-4 status does not allow the holder to work
in the U.S., however. Unless Matthew can find another basis for work authorization,
he will need to wait until the beginning of the next fiscal year to get
H-1B status and work in the U.S.
Implications for those seeking H-1B status.
Anyone who seeks H-1B status at a time when the H-1B quota cap has been
met must consider carefully, how and when he/she can obtain H-1B status.
The prospect of not being able to obtain H-1B status until the next fiscal
year should also be considered. The following options should be considered:
1. Employment with an H-1B cap-exempt employer. If one can find such an
employer (see above) then an H-1B petition may be filed at any time and
it should not be denied on the basis of the H-1B quota cap. Conversely,
anyone already employed in an H-1B status that is cap exempt, should not
apply to transfer to non-exempt employment unless a starting date no later
than the next fiscal year is requested.
2. Maintain another non-immigrant status. As H-1B status may not be available
until the beginning of the next fiscal year, other statuses such as F,
J, O, or H-4 should be considered. Each of these statuses present their
own problems, so one should consult with an experienced attorney before
taking on such a status. NOTE: Merely filing for H-1B with a requested
starting date on or after October 1, 2004 now and hoping to stay in status
by virtue of a pending change of status will not work. If there is a gap
between the expiration of the last status and beginning of the next (i.e.
H-1B) status, then the change of status will be denied. Another status
would be needed to fill the gap. On the other hand, someone whose status
would have a grace period after expiration would still be able to change
status, provided that the H-1B petition was filed before the grace period
began. For instance, a person in F-1 status, whose duration of stay (including
period of Optional Practical Training (OPT)) will expire after August
2, 2004 will still have another 60-day grace period, for which he/she
will be in legal status. If an H-1B petition requesting a starting date
of October 1, 2004 is filed before August 2, 2004, then the petition and
change of status to H-1B may still be granted. As is explained below,
however, such a petition should probably be filed well before August 2,
2004 anyway.
3. Adjustment of Status. Those who have filed an employment-based immigrant
petition (Form I-140) under the 1st, 2nd, or 3rd employment preferences
may also apply for adjustment of status (Form I-485) along with their
I-140 petitions. A pending application for adjustment of status establishes
a lawful stay in the U.S. for the applicant as long as the adjustment
application is still pending. Also, a person with an adjustment application
is eligible for a work authorization (EAD), which will allow the individual
to work in the U.S. as long as the adjustment application is pending.
The problem with this option is that a person in adjustment pending status,
without any underlying non-immigrant status, may not change to another
status in the U.S. Also, if the adjustment of status is denied, the person
will be out of status.
4. File any H-1B petitions as early as possible. Since the number of available
H-1B visas were used up so quickly in Fiscal Year 2004, it can be expected
that many people who hoped to obtain H-1B status for this fiscal year
will instead acquire the status for Fiscal Year 2005 (starting October
1, 2004). Probably a great number of H-1B petitions will be filed very
soon after USCIS starts accepting such petitions again in April 1, 2004.
As a result the 2005 cap will likely be met by H-1B petitions filed before
the 2005 fiscal year even begins, possibly as early as July 1, 2004. For
this reason, it is wise to file an H-1B petition as soon as possible to
avoid being shut out from H-1B status for yet another year.
These recent developments make the services of an experienced and competent
attorney all the more valuable. There are many pitfalls to the future
of an alien considering H-1B benefits. Also, the need to act quickly to
avoid being left behind is greatly aided by an experienced attorney who
can rapidly take the necessary steps to serve a client’s needs.
If you are considering obtaining H-1B benefits or hiring someone in H-1B
status, the attorneys at Zhang & Associates, with their extensive
knowledge and experience, can help you get over these problems.
(03/29/04)
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