Updates - Year 2003

H-1B Visa and Immigration
	LAW OFFICE OF AJAY K. ARORA Empire State Building 350 Fifth Avenue, Suite 1415A New York, NY 10118 Phone: (212)268-3580 Fax: (212)268-3582 Email: info@h1b1.com

Disclaimer: This article is not intended to establish an attorney-client relationship. All information contained herein is generalized. Any reliance on information contained herein is taken at your own risk

UPDATES - Year 2004

2003 | 2002 | 2001 | 2000

March 2003 | January 2003

August, 2007

Please accept our apologies regarding absence of current updates. We prefer to devote resources to servicing our clients and, moreover, there are plenty of other websites such as www.murthy.com and www.shusterman.com that offer comprehensive and updated information on immigration law topics. We cannot match the size and scope of those websites. On the other hand, our legal fees are competitive as there is no staff devoted to ongoing website development.

August, 2005

H1B Cap for FY2006 Reached

The USCIS announced on Friday, August 12, 2005, that the H1B Cap for fiscal year (FY) 2006 was reached on Wednesday, August 10, 2005. Please note that the cap does not apply to cases filed for individuals with U.S. masters' degrees or above who are eligible for one of the 20,000 special H1B cap exemptions. Others not subject to the cap include those who are extending their H-1B status, changing H-1B employers, or filing an amendement of their previously approved H-1B petition.

The cap applies to the cases that were filed against the regular H1B cap of 65,000 per fiscal year. This means that FY2006 H1B cap-subject cases received by the USCIS on or after August 11, 2005 will be rejected.

Those cases received by the USCIS on August 10, 2005, will be subject to a computer-generated random selection process to determine whether the applicant will be selected for an H1B under the few remaining H1Bs under the FY2006 quota. This is because there are not enough numbers to cover all the cases filed on August 10, 2005. Thus, some of those cases will make it into the FY2006 cap, while others will not. The selection will be made on a random basis. There is no information as to how long it will take for those who filed their H1B petitions on August 10, 2005 to be notified regarding their case.

If a cap-subject H-1B petition was unable to be filed this fiscal year, the petition may be resubmitted up to 6 months before October 01, 2006, which is the start of fiscal year 2007 when an additional 65,000 visas become available. The earliest date for which a petition may be filed, therefore, is April 01, 2006, requesting an employment date of October 01, 2006.

May, 2005

20,000 Additional H-1B Filings

The USCIS (United States Citizenship and Immigration Services) published a rule regarding the 20,000 additional H1B filings for persons with U.S. master's degrees or higher. The rule indicates that the H1B petitions and conversions will be accepted on May 12, 2005. Only graduates of U.S. master's or higher programs will be eligible. All filings must be to a special address at the Vermont Service Center. A special selection process is delineated if the USCIS receives more than 20,000 requests. A mechanism for converting petitions filed for a fiscal 2006 to a fiscal 2005 number is provided. The USCIS confirmed that the 20,000 H1Bs for persons with a U.S. masters' degree or higher will be available every fiscal year.

If an H1B petition for Fiscal Year (FY)2006 is pending or approved, the USCIS will accept a conversion request for the petition so that it is approved with a start date on or before September 30, 2005. To convert, the petitioner must send (a) a letter requesting the conversion; (b) a copy of the approval notice for the FY2006 petition OR a copy of the receipt notice for the FY2006 petition OR a copy of the first two pages of the I-129 petition if the receipt notice has not been received OR a new Form I-129; (c) a certified Labor Condition Application from the U.S. Department of Labor valid for the period of requested employment.

There is no fee for converting the petition. The petition will be treated as if filed on the day of the conversion request for purposes of the FY2005 request. If there is no FY2005 number available, the original filing date will be used for processing the petition and assigning a number for FY2006 starting on or after October 1, 2005. If the petitioner already requested premium processing, or if the FY2006 petition has been approved, the petitioner does not need to request premium processing or pay a premium processing fee. If premium processing was not originally requested on the pending FY2006 case that the petitioner is converting, and the petitioner now wants premium processing, the petitioner may file Form I-907 to request conversion and pay the premium processing fee.

The USCIS anticipates that the numbers will be used quickly. All conversion requests and new FY2005 petitions should be filed as quickly as possible (on or after May 12, 2005).

December, 2004

PERM Implemented

Program Electronic Review Management (PERM), the new system for Labor Certification for Permanent Employment of Aliens, comes into effect on March 28, 2005.

Under the new system the Application for Permanent Employment Certification (Form ETA 9089) can be filed electronically or via mail with the appropriate Department of Labor (DOL) processing Center. There is no fee required for filing this application. Under PERM each application filed with the DOL will be decided within about 60 days of filing. The application can be filed either electronically or through mail at the appropriate centralized processing center.

As per PERM guidelines, documents evidencing the recruitment process undertaken by the employer need not be filed along with the Application for Permanent Employment Certification. However, the employer must maintain all such records, as it must provide the same if requested by the Certifying Officer in the event of an audit. The DOL will audit applications based on criteria developed to identify problem applications. Further, in order to maintain quality control the DOL will also audit random applications. No more than 10 to 15% of applications are expected to be audited. If a case is selected for audit and the employer fails to respond in a timely manner (generally 30 days), the application will be denied and "supervised recruitment" may be required for any future labor certification filings for up to two years. Supervised recruitment means that the employer must supply a draft advertisement for the DOL's approval and then submit a recruitment report stating the number of job candidates responding to the employer's recruitment, attach resumes received, and give a job-related reason for not hiring each U.S. worker who applied. Under current rules, monetary fines cannot be imposed on the employer for fraud or misrepresentation.

The PERM regulations have introduced additional pre-filing requirements. The Employer must obtain the prevailing wage from the State Workforce Agency (SWA) prior to filing form ETA 9089 with the DOL. One must seek prevailing wage determination from the State Workforce Agency. Determination of prevailing wage can be carried out concurrently with the placement of advertisements since the salary need not be specified in the advertisements. The advertisements should however specify the geographical location of the intended employment.

The employer must place a job order with the SWA for a period of 30 days. The employer must also place two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. The PERM regulation requires 3 additional recruitment steps for professional jobs (a job for which a bachelor’s or a higher degree is a usual educational requirement). The list of permitted additional recruitment steps include job fairs, employer's web site, job search web sites (note that a newspaper with an online help wanted section counts for a website other than the employer's, and it is possible to coordinate the online advertising with the print advertising of the same newspaper in which the print advertisement appeared), on campus recruiting, private employment firms, professional and trade organizations, employee referral programs, job notice at a campus placement office if the job requires a degree but no experience, radio and television advertisements, local and ethnic newspapers (but only to the extent they are appropriate for the job opportunity). All of the above recruitment steps should be done no more than 180 days before filing the application with the DOL. Only one of the above stated additional recruitment steps may take place within 30 days of filing.

The employer has to pay attention in filing an application with too many job requirements or skill listings as it might result in a determination that advertising needs to be done under the supervision of the DOL. Under the new regulations the job duties and skills required must be those normally required for the occupation, and cannot exceed the requirements common to the industry.

The employer will be required to maintain all records of recruitment such as recruitment report, advertisement copies, internal job postings, web postings, etc. including resumes received from US workers. However, the regulations do not require the employer to identify individual US workers who applied for the job opportunity.

One of the most frequently asked questions is “what will happen to all the labor certification applications filed either through the regular or the fast track (RIR) process?” The DOL will continue to process such applications under the current rules at the backlog elimination centers recently created in August, 2004. As a result of the introduction of the backlog elimination centers, the processing of already filed regular-track and RIR applications should be faster than current processing times.

If an employer has filed an application with the DOL already and wishes to file for the same position under PERM, it must first withdraw its application pending with the DOL and resubmit its application under PERM. If an application is not successfully re-filed it will be treated as a new application under the PERM rules and will lose its original priority date.

Will the employer be able to convert the pending labor certification applications to PERM without losing their priority dates? Yes, only applications which are withdrawn prior to the placement of the job order with the SWA may be filed under PERM within 210 of request for withdrawing the earlier labor certification and provided the application is for the identical job opportunity and provided all recruitment and advertising requirements as prescribed are satisfied. In other words, priority dates may only be retained in non-RIR cases where recruiting has not yet begun. Since RIR cases can be filed only when recruiting has already been completed, RIR cases cannot be converted to PERM; employers have the option only of withdrawing RIR and re-filing under PERM and establishing a new priority date. Given the need to also preserve filing dates for seventh and subsequent H-1B extensions, as well as section 245(i) issues, the conversion process has important tactical significance.

Though previously filed applications can be converted under PERM provided they meet all the requirements as specified by the regulations, each case will have to be independently assessed on merits if it warrants the conversion. Of particular concern would be the financial burden and repetitive retesting and re-recruiting for the refiled application.

The SWA’s will slowly be phased out and removed from the process except for providing prevailing wage determination for labor certifications under PERM.

Employment Visa Numbers Retrogress

The U.S. Department of State (DOS), as expected, announced that the Employment-Based, 3rd Preference (EB3) visa numbers for India, mainland China, and the Philippines will retrogress on January 1, 2005. The EB3 numbers for nationals of the listed countries will retrogress to January 1, 2002. This means that, as of January 1, 2005, anyone who is the beneficiary of a labor certification (or I-140 if a labor certification was not required) in the EB3 category filed on or after January 1, 2002, will not be permitted to file the I-485 or have a consular interview for an immigrant visa until a visa is "immediately available." The retrogression does not affect many persons. For example, if a labor certification was initially filed for an Indian national in December, 2001, the priority date is the date of filing of the labor certification. Since the visa chart for January, 2005, shows a date of January 1, 2002, the Indian national will be able to file I-140 and I-485 concurrently with the USCIS. For further information about priority dates, please http://www.h1b1.com/visawaiting.htm.

Pres. Bush signs Law--$1500 Filing Fee in Effect for H-1B

The USCIS website indicates on its forms list that the new $1500 fee is now in effect. Thus, all filings being sent today (December 08, 2004) should include that fee. If the employer has no more than 25 Full-Time Employees, the fee is $750 instead of $1500.

As background, before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S. citizens and lawful permanent resident workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. The ACWIA fee provisions expired on October 1, 2003.

The H-1B provisions of the Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500. Employers who employ no more than 25 full-time equivalent employees may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee. Examples of exceptions include educational institutions, nonprofit research organizations or governmental research organizations, second or subsequent requests for an extension of stay filed by the same employer for the same employee, etc.

In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by employers seeking an employee's initial grant of H-1B or L nonimmigrant classification or those employers seeking to change a beneficiarie's employer within those classifications, i.e., the employee is transferring from one employer to another. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exceptions from the $500 fee.The additional $500 "fraud fee" takes effect March 8, 2005.

The first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, the USCIS is required to count those cases against the cap for the remainder of the fiscal year. For fiscal year 2005, the new provision will allow the USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria. Petitions under this provision cannot be filed until March 8, 2005, since that is the effective date of implementation of this provision.

Additional discussion of the Fiscal Year 2005 Omnibus Apprioriations Bill as it impacts immigration law is noted below under the November, 2004 heading.

November, 2004

Additional H-1B's and other changes

The Fiscal Year 2005 Omnibus Appropriations Bill has passed both the House and Senate. For the law to be enacted, President Bush must sign the Bill. After President Bush signs the Bill, the effective date of most of the H1B provisions is 90 days following the enactment of this law, although the provisions relating to filing fees for H1Bs are expected to be effective immediately upon signing. The L-1 provisions will become effective 180 days after the enactment of the Bill. We cover the major provisions of the bill below:

If it is signed into law, the Bill will exempt up to 20,000 foreign nationals with Masters' degrees or higher from U.S. institutions of higher education from the H1B cap. Even after signing by President Bush, this provision is not expected to be effective until 90 days after the date it is signed into law.

H-1B filing fees will be increased. Specifically, the employer-funded training fee will be reinstated. This fee, which was previously $1000 per new H1B petition, will increase to $1500 per H1B petition. This is separate from, and in addition to the USCIS filing fees and the optional $1,000 premium-processing fee. Employers with fewer than 25 full-time employees in the United States will only pay half of the standard new fees, so will pay $750 per new H1B petition instead of $1500. There is also a $500 Fraud Prevention and Detection fee that will be paid for initial H1B and L-1 petitions and for change-of-status petitions. Since filing an H1B petition will be much more expensive after this Bill becomes the law, significant savings may be attained by filing an H-1B petition now--do not delay!

In addition, the employer will be required to pay 100% of the prevailing wage. Earlier, an employer was allowed to pay 95% of the government-determined prevailing wage. However, the governmental survey will have at least four levels rather than the current two levels, and there will be a formula to calculate the additional two levels if the government has only provided a two-level survey.

New Direct-Mail Program for certain Adjustment of Status & Employment/Advance Parole Applications

Effective as of December 1, 2004, the filing location for certain family-based cases will change for many I-485 (Application for Adjustment of Status), I-765 (Application for Employment Authorization), and I-131 (Application for Travel Document) cases. The change, announced on November 19, 2004, is in two phases. The first phase begins on December 1, 2004 and the second phase on April 1, 2005. This change primarily affects family-based cases; not employment-based cases. It only affects the procedures regarding where certain forms need to be filed. The new location is in Chicago, Illinois. Specific address information is provided below. We also detail the cases that are affected.

Phase I States - December 1, 2004. The program will be phased in to cover persons residing in specific states / territories as of December 1, 2004. The states are Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, Wyoming as well as the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

Phase II States - April 1, 2005. Procedures will remain unchanged until April 1, 2005 for the areas not listed in Phase I. As of April 1, 2005, affected cases from Alaska, California, Idaho, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Texas and Washington will be filed at the Chicago address

As stated above, the category most affected is certain family-based I-485s. Neither the labor certification-based I-485s, nor the employment-based special category cases (National Interest Waiver, Extraordinary Ability, Multinational Executive Transferee, and Outstanding Professor / Researcher) are part of this program.

The changed procedure affects immediate relatives who are filing their I-485s based upon approved, pending, or concurrent I-130 filings. It also includes family-based I-485s for family-preference relatives with approved I-130s and current priority dates, as well as their eligible derivative family members.

Residents of the states listed who are seeking to adjust status to permanent residence after entry as fiancées (including both K-1s and K-3s), as well as the qualifying minor children of such individuals, must file in Chicago as of the dates indicated in the two phase-in programs. The new location must also be used by battered spouses / children filing I-485s based on approved Form I-360s. Another significant category of persons subject to the new procedures is that of visa lottery winners adjusting status in the U.S.

The I-765 Application for Employment Authorization for specific, listed categories will need to be filed in Chicago, as well. These include many family-based cases, removal-related cases, and some miscellaneous cases. Persons filing their I-485s based upon family petitions, who are now required to file with USCIS local offices, will file their I-765s in Chicago from the effective dates indicated above.

The affected I-485s, I-765s, and I-131s must now be sent either to: U.S. Citizenship and Immigration Services P.O. Box 805887 Chicago, Illinois 60680 or, for deliveries that cannot be made to post office boxes: U.S. Citizenship and Immigration Services 427 S. La Salle, 3rd Floor Chicago, Illinois 60605-1098.

There is a 30 day transition period. After the 30 day transition, incorrectly filed cases will be returned to the sender with instructions for filing in Chicago.

October, 2004

H-1B Cap Reached on October 1, 2004

The U.S. Citizenship and Immigration Services (USCIS) announced on the evening of Friday, October 1, 2004 that the H-1B cap has been reached for fiscal year (FY) 2005. For those who are subject to the H1B cap, new H1B petitions must be resubmitted no earlier than April 1, 2005, allowing them to start work only on or after October 1, 2005. For a person subject to the H-1B cap, to continue to remain in the U.S. requires valid nonimmigrant status.

The USCIS will continue to process H1B petitions for persons who are filing for H1B extensions, amending the terms of their H1B employment, changing H1B employers, or requesting H1Bs for second employers. Further, not all H1B petitions for first-time H1B seekers are subject to the cap. H1B employees of institutions of higher education or of related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations, as well as J-1 physicians granted Conrad waivers, are not subject to the cap. If an individual is changing from an H1B with an exempt employer to employment with a cap-subject employer, s/he is subject to the cap and will have to wait until the next fiscal year.

September, 2004

The USCIS advises that, as of August 18, 2004, it had received 45,900 cap-subject H-1B filings subject to the fiscal 2005 cap.

August, 2004

Fiscal Year (FY) 2005 Cap-Subject H-1B Filings Reach 40,000

The most recent information regarding the H1B cap is that, as of August 4, 2004, 40,000 cases had been filed against the fiscal year (FY) 2005 cap. The total H1B cap for FY2005 is 65,000. Some of those numbers are reserved for nationals of Chile and Singapore, however, due to certain Free Trade Agreements (FTAs) signed by each of these countries with the United States. Thus, there actually are only 58,200 H1B cap numbers available for each fiscal year. (Some of the Singapore / Chile numbers may get added back in after October 1, but the number is not known at this time, though there are not supposed to be very many that were used under the FTAs.) What this means in practice is that the cap may be reached fairly soon, perhaps in October, 2004. Those who have H1B cap-subject cases will need to file their H1B petitions as soon as possible to have a chance at the remaining H1B numbers. The issuance of cap numbers is based upon the date of the case filing, not case approval. At this point, the USCIS has stated that, of the 40,000 cases filed, 21,000 have been approved.

DOS Website Includes NIV Processing Times for Individual Posts

The State Department now provides information on waiting times for interview appointments and visa processing for nonimmigrant visas at individual consular posts at http://travel.state.gov/visa/tempvisitors_wait.php

July, 2004

New Photos Required

The USCIS will soon be changing its photo requirements to match the passport-style photos. Photos are commonly required to be submitted with family sponsorship cases and adjustment of status cases as well as employment authorization and advance parole document applications commonly filed in connection with adjustment of status, but thus far the photos were required to be "green-card" style, also known as ADIT style.

The USCIS confirmed that it will begin accepting the passport-style photographs on August 1, 2004 and will phase in their use with a likely final implementation date of September 1, 2004. The following website is helpful in defining passport style photos. Those who have already submitted photos with prior applications should not send in new photos for pending applications unless specifically instructed to do so by the USCIS.

Visa Revalidation by mail ended

Visa Revalidation (for classifications C, E, H, I, L, O, and P visas) will no longer be accepted by the Department of State after July 16, 2004. The ostensible rationale for terminating visa revalidations is that the Dept. of State lacks the capacity domestically to acquire the biometric identifers all visas will be required to contain as of October 26, 2004. The Dept. of State has no current plans to revive the revalidation service. The Dept. of State program does not confer any legal status to a person in the U.S. The Dept. of State only provides a visa stamp in the passport for those who wish to travel and then reenter the United States. One who has a valid I-94 card for H1B or H-4 status (or whatever respective status he or she is in) who does not plan to leave the U.S. during the term of his or her status, does not need a visa stamp in the passport. A visa stamp can always be issued at a U.S. Consulate abroad if the applicant plans on traveling abroad.

F-1/J-1 gap relief

The USCIS will extend F-1 and J-1 status for those persons with requests to change status to H-1 filed no later than July 30, 2004, provided that the requested start-date of the H-1 status is no later than October 1, 2004. The notice specifically states that it applies only to F-1 students and J-1 exchange visitor students. Flash: Williams Yates, USCIS Assoc. Dir. Operations, has advised that the USCIS will adjudicate motions to reopen previously-denied change of status applications for students changing from J-1 or F-1 to H-1B prior to 10/1/04 if the motion is filed within the next couple of weeks.

February, 2004

The H-1B Cap Has Been Reached

The USCIS announced on February 17, 2004, that the H1B Cap has been reached for fiscal year (FY) 2004. All petitions that fall under the cap that are received after the close of business on February 17, 2004 will be rejected. This means that all fees will be returned along with the petitions. The USCIS will begin accepting cases that will fall under the FY2005 cap on April 1, 2004. These applications should request a start date of October 1, 2004, or later.

We quote below from the Press Office U.S. Department of Homeland Security dated February 17, 2004:

USCIS ANNOUNCES NEW H-1B PROCEDURES - REACHES CAP

Washington, D.C.-- U.S. Citizenship and Immigration Services (USCIS) announced today that it 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

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.

September, 2003

Elimination of H-1B Training Fee After September 30, 2003

The H-1B filing fee has been $1,130 for some time now. $1000 of this amount is referred to as a "training" fee intended for training U.S. workers. A September 15, 2003 Memo issued by William R. Yates, Associate Director for Operations, Bureau of Citizenship and Immigration Services (CIS), states that there will be no $1,000 Training Fee after September 30, 2003. Any case filed on or after October 1, 2003 will be rejected if accompanied by a single check in the amount of $1,130 as payment of the required $130 filing fee and the no-longer-required $1000 fee. If two checks are sent, one for $130 and one for $1000, the case will be accepted and the $1000 check returned. Cases filed before October 1, 2003 will continue to require the $1000 training fee, unless eligible for an exemption.

H-1B Cap for Fiscal Year 2004

The H-1B "cap" is set to return to 65,000 in fiscal year (FY) 2004 (October 1, 2003 to September 30, 2004). This is an enormous decrease from the current cap level of 195,000.

The "cap" is the limit on the number of H-1B petitions for "new employment" that can be approved in a particular fiscal year. Once this cap is reached, H-1B petitions for new employment can be filed, but must contain a start date for employment that is in the following fiscal year, e.g., October 01, 2004. Exactly what this means depends upon whether one is in the U.S. and, if so, when that person's status ends. Once the cap is reached, one who is located outside the U.S. will not be able to obtain an H-1B petition approval until the following fiscal year. For one already in the U.S., the consequences depend upon his or her status and the status expiration date. Once the cap has been reached for the year, it will not be possible to change status to H-1B in that fiscal year. For one whose status ends prior to the next fiscal year, it will not be possible to change status even when the new H-1B numbers become available. The reason for this is that the expiration of the status creates a gap and a change of status requires that the individual have continuous status.

The first important matter is to understand whether the cap applies to a particular case. It only applies for new employment. Individuals who are currently in H-1B status, and who are extending their H-1B status, whether through the same employer or another employer, are not counted against the cap again. This is, therefore, not an issue for almost all of those who are already in the U.S. in H-1B status. (The only exception to this is for individuals previously employed by organizations not subject to the cap, who then seek to change to a non-exempt employer.) There are also limited cap exemptions for petitions filed by a very small group of employers. This exemption includes certain institutions of higher education and their affiliates, non-profit research organizations, and government research organizations. The cases subject to the cap are those filed by employers not included under the listed exemptions for new employment.

Prior years' experience shows that the cap may be reached in February, 2004. The CIS normally announces when the cap may be reached at least a couple of weeks prior to the cap actually being reached. The petitions would be adjudicated in the order received and counted against the cap. They would adjudicate all pending petitions and count them against the cap as they were approved. Cases with Requests for Evidence (RFEs) would be taken out of the queue until the RFE response was filed. Petitions pending when the cap was announced, which did not meet the cutoff, would be adjudicated with a start date of October 1 of the next fiscal year. This would affect whether they could be processed as change-of-status cases. If a person could not maintain status through to the following fiscal year, a change of status could not be granted and consular processing would be necessary. Any case filed later would need to have a start date in the next fiscal year, e.g., Oct. 01, 2004 or later.

Since cases are counted against the cap as they are adjudicated, premium processing may be the best way to proceed as the cap approaches its limit. However, if most persons decide to spend the additional $1000 for premium processing, the benefit through premium processing would evaporate.

In the past, when the cap was reached, special benefits were extended to F and J nonimmigrants who filed before the cap announcement, but did not make the cap in the particular year. These individuals had their durations of status extended, and then their requests to change status could be approved in the next fiscal year. The students were not authorized to work during the time that their H-1B petitions were pending (if their OPT had expired) until the change of status was approved, usually on October 1 of the new FY.

BCIS Changes Name to USCIS

There are three sister agencies: U.S. Citizenship and Immigration Services (USCIS or CIS), the Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). In the case of the former BCIS, it appears that the "B" was dropped, but "US" for United States has now been added. The former BCIS is being referred to as "CIS" more often than "USCIS", however. This change does not seem to have any effect on filing fee checks. Filing fees will be accepted at this time whether checks are made out to USCIS, BCIS, or DHS.

DV-2005 Lottery Instructions

The U.S. Department of State (DOS) has issued instructions for the annual Diversity Immigrant Visa Program for the upcoming fiscal year. Those selected under this program are eligible to apply for a green card or immigrant visa, provided that they are otherwise eligible for adjustment of status or consular processing, and that they meet specified lottery criteria. This program, known as DV-2005 or the "visa lottery," provides for an annual allotment of 50,000 immigrant visas to individuals from countries with lower rates of immigration. Accordingly, this means that natives of the following countries are NOT eligible: Canada, China (mainland), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

The most significant change from past years is that applications must be filed electronically. Unlike prior years, paper applications will not be accepted. The application period is between November 1, 2003 and December 30, 2003. These applications must be submitted online within the 60-day application period. Detailed instructions on the DV-2005 program are available on the DOS WebSite.

Personal Interviews at Consulates

Most individuals seeking nonimmigrant visas at a consulate will have an in-person interview. Interviews will be required for all nonimmigrant (temporary) visa applicants, subject to very limited exceptions. There are four exceptions to the interview requirement. The one most persons will be subject to is for persons seeking reissuance of a visa within twelve months of having obtained a visa in the same category. Another common exception is for applicants 16 years and younger or 60 and older. The exceptions are merely circumstances under which the consulate potentially could waive the interview. The consulate is always allowed to require an interview for any person at any time.

A visa is a document required for entry to the U.S. from abroad. If there is no foreign travel, a visa is not needed. An individual's status is determined by the I-94 card given at the time of entry to the U.S. at the airport or other port of entry. Of course, the individual is required to comply with the terms of his or her stay in order to be considered in status. The visa does not confer status and is not necessary to maintain status. Therefore, if no travel is anticipated, a current visa in the correct category is not legally necessary. The person only needs an I-94 card, generally attached to an approved petition, to stay and/or work legally in the U.S., depending upon the classification approved by the BCIS.

Individuals in H-1B status often ask whether they need to obtain a new visa when they change companies. The general answer is, "No." Such individuals need to file for and obtain a new H-1B petition and a new I-94 card authorizing employment with each employer. They do not necessarily need a new visa stamp in the passport. If they receive a new petition approval with an I-94 attached, they are not required to get a new visa to maintain status while in the U.S. Additionally, if the individual previously obtained an H-1B visa, that visa will list the name of the initial sponsor. However, that visa is not limited to use while only working for the initial sponsor. It can be used as long as the individual is seeking entry to the U.S. in the same visa category and is eligible for admission in that category. The same is true for H-4 derivative family members.

March, 2003

New INS Filing Fees Revisited

Effective February 27, 2003, the fees for immigration services are returned to their previous amounts. More detailed information can be obtained from this news release dated February 27

Visa Required for Canadian Landed Immigrants

After March 17, 2003, all Canadian Landed Immigrants (with some exceptions) will be required to present a passport and visa in order to enter the United States. In conjunction with this new requirement, the U.S. embassy has issued an announcement explaining which landed immigrants will be affected as well as the documentation requirements and visa appointment procedures for each consulate. This information can be obtained by clicking on the embassy's website

January, 2003

INS Reduces Filing Fees

The INS has reduced its filing fees on many applications and petitions. The changes take effect on January 24, 2003. This fee reduction is due to the Department of Homeland Security Act instructing the Immigration and Naturalization Service to no longer collect that portion of fees which had been previously collected to fund asylum and refugee services and certain fee waiver and exemption programs. Therefore, INS fees have been reduced for most applications and petitions by up to 25 per cent, effective immediately. For the newly enacted fees, please click here: changes to INS filing fees.

The INS has stated that it will continue to accept the higher fees for now and will issue the the INS-generated fee receipt notice. This is unlike INS' prior policy of rejecting the application or petition and refusing to generate the INS receipt notice to the applicant or petitioner. By agreeing to issue the INS receipt of the application or petition and providing a priority date, if applicable, it will help those who did not have sufficient advance notice of the INS's decision to reduce fees. The INS has stated that it will issue refunds, if applicable, for applications or petitions received after January 23, 2003.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

Ajay K. Arora, Esq., is a prominent member of the Immigration & Nationality bar in New York City and a member of the American Immigration Lawyers Association. He may be contacted at (212)268-3580.