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The Effects Of The H-1B Cap

Monica Modi Khant, Esq.

Since February 18, 2004, the United States Citizenship and Immigration Services (USCIS) has no longer been accepting any more H-1B applications which counted against the cap for this fiscal year. The fiscal year runs from October 2003 to October 2004. Therefore, H-1B applicants with applications which count against the cap will most likely be unable to work for an employer this fiscal year. They must wait until the next fiscal year to begin their employment.

The next fiscal year begins on October 2004 and will last until the end of September 2005. Since the H-1B cap was reduced and met so quickly this past fiscal year, many employers and employees are worried that the same will happen for the next fiscal year. The annual H-1B cap was reduced from 195,000 in previous years to 65,000 this year. Chances are likely, unless there is congressional action, that the cap for the fiscal year of 2005 will be 65,000 again and may be exhausted very quickly.

USCIS is currently accepting applications which will count towards the H-1B cap for the 2005 fiscal year. These applications will not be adjudicated until this summer and the start date of the employment will not be until October 2004. However, filing these applications in advance of the start of the 2005 fiscal year may give hope to those who are worried about the 2005 cap being exhausted fairly quickly. Many employers are tuned into this fact and have already started taking advantage of filing early.

Even though the 2004 cap has already been exhausted, there are still many unresolved questions as to how the cap will affect certain applicants. For example, the USCIS has not yet addressed what will happen to applicants who are currently in valid status who wish to change their status to an H-1B. If their current status expires before October 1, 2004, what can be done in the meantime? This is a key question which needs to be addressed by USCIS.

It is important to note that there are some H-1B applications which do not count against the H-1B cap for 2004. Generally, applications where one has already held or holds an H-1B status but is changing employers, will not count against the cap and those applications can still be filed for this year. There also are other situations where the H-1B application will not count against the 2004 cap. It is important to consult with an attorney or immigration specialist to check each case and situation.

(Monika Modi Khant is an Immigration Lawyer with Vakili & Associates and can be reached at 617.242.7666. )

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