H-1 Quota issues
General Quota Issues
Q. Based on the fact that the H-1B cap has been reached, and USCIS is permitting new H-1B applications to be filed on April 1, 2004 with a start date of October 1, 2004, what will the processing times be for (1) premium processing and (2) regular processing?.
A. The processing time for premium processing is usually 15 days from the date that USCIS receives the application and regular processing can take 3 to 6 months. Due to lesser workload, the regular processing times may improve. Keep in mind that even though you apply for premium processing, the approval will only be effective from October 1, 2004.
Q. Will any additional information be required if I file my petition on April 1, 2004?
A. No, the information submitted will remain the same
Q. Are O visas subject to the cap?
A. No. That may be the way out for many.
F- 1 and J-1 to H-1 Conversion Issues
Q. What options do I have in order to stay and work legally in the US after expiration of my OPT?
Qo. 1. You will not be allowed to stay and work in the US once your OPT has expired.
Options for Maintaining Status – B-1/B-2 Status
In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a “B-1/B-2” application could be an option. The general instructions below are applicable to all applicants :
- Get Form I-539 from USCIS (NOTE: CONFIRM THE FILING FEES)
- Apply for a 6 months change of status to B-1/B-2 , which can be used as a catch-all status for all stay in the U.S.
- Attach to the I-539 a letter explaining to the USCIS that :
1. You need temporary stay in USA, and why (the H-1 quota expired and you could not apply in a timely manner – give detailed reasons);
2. You have means to support yourself; and
3. You know you are not allowed to work on a B status.
This should usually get you 6 months stay without falling out of status.
===========ONE QUICK NOTE==============
In a case in June 1999, USCIS seems to say that they may NOT issue B status to everyone. Note the following letter from USCIS:
"The B-1/B-2 classification is not a "catch all" classification available
to all who wish to come to the United States temporarily for whatever
purpose. Instead it encompasses a specific, defined class of alien.
You must establish the following to be eligible for a B-1 nonimmigrant visa:
As you are in the United States conducting business on behalf of a foreign
entity, it is reasonable to expect that you are making frequent contact
with this entity. Submit evidence of your contact with the foreign company
by submitting your phone statements.......
Submit a letter from your employer that describe the nature of your
employment with them...."
I think USCIS is wrong. In any case, this may be your best shot.
Note that, in the past, INS had allowed F/J students to stay in status when they got stuck in the gap (not allowed to work, though). We do not know how it will be handled now.
For Physicians
Q. Are residency programs exempt from the H-1B quota?
A. There MAY be some exemptions for residencies in University Hospitals, but we are unsure at this time.
Q. Are Conrad Waiver holding physicians exempt from cap?
A. Conrad waivers should be exempt from the cap. But this is a gray area so far.
H-1 to H-1 issues
Q. Would an H-1B application be subject to the quota if H-1B status had been previously obtained, and later converted to another status?
A. * I think so. Although there is language in AC 21 law that seems to exempt such people Yes, the new H-1B application would be subject to the quota, because the current status is not H-1B.
H-1 Applications Pending As of 17 February 20024
Q. If a Request for Evidence (RFE) was issued after the H-1b petition was filed, will the H-1B be subject to the quota?
A. No, we do not think so. Pending cases, whether premium or regular processing, should be processed.
L-1 to H-1 Conversion issues
Q. I am currently on L-1 status and would like to transfer to H-1b status. Will a change of status from L-1 to H-1B be subject to the H-1B cap?
A. Yes, the H-1B cap is applicable to the conversion from any status to H-1B status
Conversion from exempt to non-exempt
Q. Will I be affected by the H-1B quota if I want to transfer my H-1B status from an exempt employer to a non-exempt employer?
A. Yes, you will have to wait until April 1, 2004 to apply for the transfer, and your start date will be on or after October 1, 2004.
The Law
_________________________________________
AC21
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
`(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
`(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
`(B) a nonprofit research organization or a governmental research organization.
`(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
`(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.
Higher Education Act
_________________________________________
§ 1001. General definition of institution of higher education
(a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
(b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
(1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.
(c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.
General Quota Issues
Q. Based on the fact that the H-1B cap has been reached, and USCIS is permitting new H-1B applications to be filed on April 1, 2004 with a start date of October 1, 2004, what will the processing times be for (1) premium processing and (2) regular processing?.
A. The processing time for premium processing is usually 15 days from the date that USCIS receives the application and regular processing can take 3 to 6 months. Due to lesser workload, the regular processing times may improve. Keep in mind that even though you apply for premium processing, the approval will only be effective from October 1, 2004.
Q. Will any additional information be required if I file my petition on April 1, 2004?
A. No, the information submitted will remain the same
Q. Are O visas subject to the cap?
A. No. That may be the way out for many.
F- 1 and J-1 to H-1 Conversion Issues
Q. What options do I have in order to stay and work legally in the US after expiration of my OPT?
Qo. 1. You will not be allowed to stay and work in the US once your OPT has expired.
Options for Maintaining Status – B-1/B-2 Status
In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a “B-1/B-2” application could be an option. The general instructions below are applicable to all applicants :
- Get Form I-539 from USCIS (NOTE: CONFIRM THE FILING FEES)
- Apply for a 6 months change of status to B-1/B-2 , which can be used as a catch-all status for all stay in the U.S.
- Attach to the I-539 a letter explaining to the USCIS that :
1. You need temporary stay in USA, and why (the H-1 quota expired and you could not apply in a timely manner – give detailed reasons);
2. You have means to support yourself; and
3. You know you are not allowed to work on a B status.
This should usually get you 6 months stay without falling out of status.
===========ONE QUICK NOTE==============
In a case in June 1999, USCIS seems to say that they may NOT issue B status to everyone. Note the following letter from USCIS:
"The B-1/B-2 classification is not a "catch all" classification available
to all who wish to come to the United States temporarily for whatever
purpose. Instead it encompasses a specific, defined class of alien.
You must establish the following to be eligible for a B-1 nonimmigrant visa:
As you are in the United States conducting business on behalf of a foreign
entity, it is reasonable to expect that you are making frequent contact
with this entity. Submit evidence of your contact with the foreign company
by submitting your phone statements.......
Submit a letter from your employer that describe the nature of your
employment with them...."
I think USCIS is wrong. In any case, this may be your best shot.
Note that, in the past, INS had allowed F/J students to stay in status when they got stuck in the gap (not allowed to work, though). We do not know how it will be handled now.
For Physicians
Q. Are residency programs exempt from the H-1B quota?
A. There MAY be some exemptions for residencies in University Hospitals, but we are unsure at this time.
Q. Are Conrad Waiver holding physicians exempt from cap?
A. Conrad waivers should be exempt from the cap. But this is a gray area so far.
H-1 to H-1 issues
Q. Would an H-1B application be subject to the quota if H-1B status had been previously obtained, and later converted to another status?
A. * I think so. Although there is language in AC 21 law that seems to exempt such people Yes, the new H-1B application would be subject to the quota, because the current status is not H-1B.
H-1 Applications Pending As of 17 February 20024
Q. If a Request for Evidence (RFE) was issued after the H-1b petition was filed, will the H-1B be subject to the quota?
A. No, we do not think so. Pending cases, whether premium or regular processing, should be processed.
L-1 to H-1 Conversion issues
Q. I am currently on L-1 status and would like to transfer to H-1b status. Will a change of status from L-1 to H-1B be subject to the H-1B cap?
A. Yes, the H-1B cap is applicable to the conversion from any status to H-1B status
Conversion from exempt to non-exempt
Q. Will I be affected by the H-1B quota if I want to transfer my H-1B status from an exempt employer to a non-exempt employer?
A. Yes, you will have to wait until April 1, 2004 to apply for the transfer, and your start date will be on or after October 1, 2004.
The Law
_________________________________________
AC21
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
`(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
`(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
`(B) a nonprofit research organization or a governmental research organization.
`(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
`(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.
Higher Education Act
_________________________________________
§ 1001. General definition of institution of higher education
(a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
(b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
(1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.
(c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.
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