H1 B cap question for applicants currently in the U.S.

[vishsh]

I read the following information on one of the newsletter on the website murthy.com:

" For one (the applicant who is) already in the U.S., the consequences (Number of H1 visa approvals reaching the cap limit) depend upon his (current) status and the status expiration date. Once the cap has been reached for the (current) year, it will not be possible to change the status to H-1 in that fiscal year. For one (the applicant who is) already in the U.S., whose status ends prior to the (start of the) next fiscal year, " it will not be possible to change status even when the new H1B numbers become available (during the next fiscal year)". The reason for this is that the expiration of the status creates a gap and a change of status requires that the individual (must) have continuous status. This leaves some people stranded, without a way to change their status to H1B.

How accurate is this statement? So if someone's current status (for eg. F1) expires before Oct 1st 2004 (or say, before June 2004) and assuming that the cap gets full before that person can get the H1 approved, then would that person never get a H1 approved, NOT even after October 1st 2004, because if what the above statement says is accurate then that person will obviously not maintain a continous status, if his current Visa/OPT expires in May or June 2004. (Of course, it is assumed in this case that the H1 petition would be properly filed before the Current visa status expires)

 

[Raj1994]

There are some anecdotal reports that a procedure to help F1 and J1 canidates once cap is reached would be formulated by the USCIS. I dont know if this will come through.

 

[vishsh]

H1 B cap

So any person who is already here in the U.S., awaiting the approval/rejection of the H1-B petition, (After the Cap limit has reached and the processing gets delayed by upto 6 months) , and the current OPT/F1 PLUS the 60 day grace period expires before the "Change of Status" is approved/rejected, then IS there any Clear (Not ambiguous) status for that individual, whether that person is legal or 'out of status' ?

I am asking this because the H1 Cap is definately doing to Hit this year a lot earlier than usual and because of the weak job market some of the applicants who are on F1/OPT (expiring in early March/April/May/June/July 2004) will face this problem if they are not able to get their H1 Visas approved before the cap is hit. Does anyone know if their processing gets postponed to the next fiscal year, will they still be maintaining their Legal status, waiting for a valid pending H1 petition, filed before their OPT (or OPT plus the grace period) expires? What will be their Legal status after the OPT (or OPT plus the grace period) expires and before the H1 is appoved (if at all)?

From the answer posted above by Raj, does it mean that INS currently DOES NOT have a clear status for such individuals? That would be really stressful for all such people!