News July 23, 2004

H-1B Cap Gap Notice Extends Duration of Status of Foreign Students

Today, July 23, 2004, the USCIS published a rule in the Federal Register extending the stay of all F-1 Students and J-1 Exchange Students provided that a prospective employer has timely filed a request for change of the student's nonimmigrant status to H-1B nonimmigrant alien on or before July 30, 2004. These students and exchange visitors may remain legally in the U.S. until the annual allocation of 65,000 H-1B visas becomes available at the start of the government's new fiscal year on October 1, 2004.

Petitions seeking change of status to H-1B must request a work start date of October 1, 2004 for these F-1 and J-1 students. The rule does not apply to other categories of J-1 exchange visitors. The blanket rule extends the authorized period of stay until the USCIS adjudicates the employer's petition. F-1 and J-1 Students who travel outside the U.S. while a petition requesting change of status to H-1B is pending with the USCIS will not be re-admitted to the U.S. until they apply for and receive a new H-1B visa at a U.S. consulate.

We had earlier reported that on the evening of February 17, 2004, USCIS announced that it had received enough new H-1B petitions to consume the 65,000 available H-1B visas for this fiscal year, which began on October 1, 2003 and ends on September 30, 2004. The annual cap reverted from 195,000 per fiscal year to 65,000 effective October 1, 2003, thus creating a shortage of H-1B visas.

In the period from February 17th to the present, many students and exchange visitors had been waiting for USCIS to issue the "cap gap" notice, as it had done in previous years when the law provided for insufficient H-1B visas to meet employers' needs. In those earlier years, the agency had published the notice earlier in the fiscal year to allow employers and their prospective employees time to plan their change of status. This fiscal year, the notice comes very late and allows only one week for the regulated community to act.

Note that the cap does not affect H-1B employees who (1) change employers; (2) apply for extensions of stay; or, (3) change jobs with the same employer who files to amend a previously approved petition. In addition, petitions filed on behalf of prospective employees of institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are not subject to the annual H-1B cap.


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