H-1B Cap Update

On June 11, 2004, AILA’s (American Immigration Lawyer Association) annual conference was held in Philadelphia. During the annual conference, Service Center Operations Director Fujie Ohata announced that as of the end of May, the H-1B Cap of fiscal year 2005 has been used 16,100 counts that are either approved or in pending status.

As we all known that the H-1B Cap is total 65,000 for fiscal year 2005, so almost one quarter of the whole cap had been used. Although it seems that the cap is not being used as fast as we predicted, we still recommend aliens who have opportunity to apply an H-1B status that counts on the cap file their petition as soon as possible. As the economy is rebounding in the first quarter of the year, more and more enterprises will start expand their employee crew. More and more newly graduated aliens are getting their job offers, so we still believe the 2005 H-1B cap might be used up before October.

On June 18, 2004, the Department of Homeland Security (DHS) sent to the Office of Management and Budget (OMB) a draft notice titled "Supplemental Information Regarding the H-1B Numerical Limitation for FY 2004 Affecting F Nonimmigrants". This means the DHS is trying to make up the big gap that might happen to some F status aliens. If the OMB approved the notice, and published it, the F status aliens would be allowed to remain F status until the new H-1B cap is available for them. However, the OMB still has 90 days to make a decision about this notice, so sit and wait for the approval of the notice is not a smart idea. The best way for the F status aliens who is facing H-1B gap is to renew their I-20 with their school and keep the legal F status alive. If the OMB approves the notice on time, the aliens can go ahead drop out from school, and start applying their H-1B status; otherwise, if the OMB disapproves it or delays the decision, the aliens can still be in legal status, and wait for the new cap of H-1B becomes available.

Our law firm will be more than happy to monitor the new H-1B updates in the future, and provide aliens the best services that we can to help aliens achieve their dreams.

(06/21/2004)

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