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US Citizenship and Immigration Services Cuts Off H-1B Visas for 2005

Article

The Employment and Labor Law Alert

October 22, 2004

The H-1B visa is the most frequently used non-immigrant work visa for highly educated foreign professionals. On the first day of fiscal year 2005, US Citizenship and Immigration Services (USCIS) announced that it would no longer accept visa petitions for H-1B visas for that fiscal year because it had received enough H-1B petitions to meet the congressionally mandated limit of 65,000. Of this 65,000 cap, 6,800 visas are set aside for the H-1B programs under the terms of the U.S.-Chile and U.S. Singapore Free Trade Agreements.

Unless Congress acts, employers will be prevented from hiring new H-1B professionals for a year. Many of these professionals hold degrees from U.S. colleges and universities. Although in the press the H-1B visa is most often associated with computer professionals, holders of the visa also include doctors, lawyers, nurses, economists, educators and engineers. Prospective employers of such professionals will have to seek alternative visa strategies or wait for the new fiscal year.

In connection with announcing the cut-off, USCIS set out procedures for the H-1B petitions filed after October 1, 2004. These procedures include:

    • All petitions for first-time employment subject to the annual cap will be returned.

    • Returned petitions will be accompanied by the filing fee.

    • Petitioners may re-submit their petitions when H-1B visa become available for FY 2006.

  • April 1, 2005 is the earliest date a petitioner may file a petition requesting FY 2006 H-1B employment with a start date of October 1, 2005.

Some H-1B petitions do not count toward the H-1B cap. They include the following petitions:

    • To extend the amount of time a current H-1B worker may remain in the United States.

    • The change the terms of employment for current H-1B workers.

    • To allow current H-1B worker to change employers.

    • To allow current H-1B workers to work concurrently in a second H-1B position.

    • To employ an alien at an institution of higher education or a related or affiliated nonprofit entity.

    • To employ an alien at a nonprofit research organization.

  • To employ an alien at a governmental research organization.

If you have any questions, please call Susanne Peticolas at 973-596-4751 or e-mail her at speticolas@gibbonslaw.com