Question: I have a college degree in accounting and an employer that wants to sponsor me. I have been told that I qualify for the H-1B, but that there may be a problem with getting the H-1B adjudicated. My application was submitted about one week ago. I better hurry to get the application in to the immigration. How long do I have?

Answer: Unfortunately, you may be too late for this year. The United States Citizenship and Immigration Services (USCIS) have just announced that the H-1B procedures have reached the cap. In other words, the 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.

Question: What does this mean for my application?

Answer: First, the new H-1B’s will start again next October. USCIS has implemented the following procedure for the remainder of FY 2004: 1) USCIS will process all petitions filed for first-time employment received by the end of business on February 17, 2004; 2) USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business today; 3) Returned petitions will be accompanied by the filing fee; 4) Petitioners may re-submit their petitions when H-1B visas become available next October; 4) The earliest date a petitioner may file a petition requesting Fiscal Year 2005 H-1B employment with an employment start date of October 1, 2004, would be April 1, 2004.

Question: What about my friend who has an H-1B that is about to expire and needs to get his H-1B extended? Is he also subject to the H-1B cap.

Answer: 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.

Question: Are there any other exceptions?

Answer: 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.

Question: What about persons who do not fall into those categories, but must file for the H-1B?

Answer: They cannot file now for the H-1B. However, there are other types of status they could try to apply for if they qualify. Such examples would be the O (Extraordinary Ability), or F (Student) change of status. They must be careful to maintain their status or they will not be able to change their status once the H-1B’s begin again next October.

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Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.