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Information Regarding the H-1B Numerical Limitation for Fiscal 
Year 2005

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice explains how the Department of Homeland Security
(DHS), through U.S. Citizenship and Immigration Services (USCIS), will
process H-1B petitions for new employment for Fiscal Year (FY) 2005 now
that it is clear that the demand for H-1B workers will exceed the
statutory numerical limit (the cap) for H-1B nonimmigrant aliens for FY
2005. This notice is published so that the public will understand the
procedure for processing H-1B petitions now that the cap is reached, as
this procedure may affect the hiring decisions of some prospective H-1B
petitioners. These procedures are intended to minimize confusion and
the burden on employers who use the H-1B program.

DATES: This notice is effective November 23, 2004.

FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, Business and Trade
Services Branch/Program and Regulation Development, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 111
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone
(202) 305-3175.

SUPPLEMENTARY INFORMATION:

Who Is an H-1B Nonimmigrant?

An H-1B nonimmigrant is an alien employed in a specialty occupation
or as a fashion model of distinguished merit and ability. A specialty
occupation is an occupation that requires theoretical and practical
application of a body of specialized knowledge and attainment of a
bachelor's or higher degree in the specific specialty as a minimum for
admission into the United States.

What Is the Cap or Numerical Limitation on the H-1B Nonimmigrant
Classification?

Section 214(g) of the Immigration and Nationality Act (Act)
provides that the total number of aliens who may be issued H-1B visas
or otherwise granted H-1B status during FY 2005 may not exceed 65,000.
In accordance with the Free Trade Agreements (FTA) for Chile and
Singapore, as approved by Congress in Public Laws 108-77 and 108-78,
1,400 out of the 65,000 H-1B numbers are reserved for H-1B1
nonimmigrants from Chile, and 5,400 out of the 65,000 are reserved for
H-1B1 nonimmigrants from Singapore. This effectively reduces the
overall number of H-1B numbers that may be used prior to September 30,
2005, from 65,000 to 58,200.
Section 214(g)(8)(B)(iv) of the Act also requires that any unused
H-1B1 numbers set aside for aliens from Chile and Singapore be applied
to the numerical limitation for the fiscal year in which they were not
used. Visas may be issued under such an adjustment within 45 days of
the next fiscal year to aliens who had applied for such visas during
the fiscal year for which the adjustment was made. Id. The total number
of Chileans and Singaporeans who were granted H-1B1 visas or otherwise
granted H-1B1 status during FY 2004 was less than 100. Therefore,
pursuant to Section 214(g)(8)(B)(iv), USCIS has returned approximately
6,700 unused H-1B1 numbers to the FY 2004 H-1B cap.
Following the adjustment for the Chile and Singapore H-1B1 program,
and taking into account any other cases that can be counted against the
FY 2004 cap, there now appears to be a sufficient number of H-1B
petitions with employment start dates prior to October 1, 2005 pending
at the USCIS Service Centers to reach the adjusted cap for FY 2005.
Therefore, as of October 2, 2004, and until April 1, 2005, USCIS will
return any petitions (along with the filing fee and, if applicable, the
premium processing fee) requesting an

[[Page 68155]]

employment start date prior to October 1, 2005.

What Is the Effect of This Notice?

This notice explains the USCIS procedure for processing H-1B
petitions for new employment, which are subject to the H-1B cap, and
filed by employers seeking to employ H-1B aliens on or before September
30, 2005.

Will Electronic Filing (e-Filing) for H-1B Nonimmigrant Classification
Still Be Available Now That the H-1B Cap for FY 2005 Has Been Reached?

No. Since the H-1B cap has been reached and USCIS is no longer
accepting H-1B petitions pursuant to FY 2005 employment, e-filing for
H-1B nonimmigrant classification has also been suspended. H-1B
extensions and non-cap H-1B cases must now be filed under the mail-in
process. In accordance with 8 CFR part 214.2(h)(9)(i)(B), which allows
petitions for H-1B classification to be filed 6 months prior to the
requested employment start date, petitions filed for work to commence
on October 1, 2005 (FY 2006) may be filed via e-filing as early as
April 1, 2005.

Why Was the Cap or Numerical Limitation on the H-1B Nonimmigrant
Classification Reached So Early in FY 2005?

The FY 2004 cap or numerical limitation on the H-1B nonimmigrant
classification was reached on February 17, 2004. As explained in the
February 25, 2004 notice published in the Federal Register at 69 FR
8675, and under the procedure also carried out in this notice, USCIS
regulations at 8 CFR part 214.2(h)(9)(i)(B) allow petitions for H-1B
classification to be filed 6 months prior to the requested employment
start date. Therefore, beginning on April 1, 2004, petitions filed for
work to commence on October 1, 2004 could be filed. Although these
petitions were filed in calendar year 2004 they count against the FY
2005 H-1B cap, unless applied to the required adjustment under Section
214(g)(8)(B)(iv).
The H-1B cap or numerical limitation of 65,000 under section 214(g)
of the Act is set by Congress, and USCIS is required to adhere to the
statutory numerical limitation.

Does This Notice Announcing That the Cap Has Been Reached for FY 2005
Affect All H-1B Petitions Filed for FY 2005?

No. This notice relates only to H-1B petitions filed for
beneficiaries who are subject to the numerical limitations and will be
engaged in ``new employment,'' to commence on or before September 30,
2005. A petition for new employment includes a petition where the alien
beneficiary is outside the United States when the H-1B petition is
approved or where the alien is already in the United States in another
status and is seeking H-1B status, either through a change of
nonimmigrant status from within the United States or a notice to the
Consulate of the eligibility for the new status.
Petitions for beneficiaries exempt from the H-1B numerical
limitations, amended petitions, and petitions for extension of stay are
not affected by this procedure because these petitions do not count
against the cap. Likewise, petitions for aliens in the United States
who already hold H-1B status, i.e., petitions filed on behalf of an H-
1B alien by a new or additional employer, generally are not affected by
this procedure. This procedure does not relate to petitions filed
before October 1, 2005, for employment to commence on or after October
1, 2005.

What Is the USCIS Procedure for Processing H-1B Petitions for New
Employment During the Remainder of FY 2005?

This notice informs the public that there appears to be a
sufficient number of H-1B petitions pending at USCIS Service Centers to
reach the adjusted cap of 58,200 for FY 2005. As of October 2, 2004,
USCIS will not accept for adjudication any H-1B petition for new
employment containing a request for a work start date prior to October
1, 2005. Petitions filed on or after October 2, 2004 will be returned
(along with the filing fee and, if applicable, the premium processing
fee) to the petitioner according to 8 CFR 214.2(h)(8)(ii)(E). In
accordance with existing regulations, such petitioners may refile those
petitions after April 1, 2005, with a new starting date of October 1,
2005, or later.
USCIS has established how many H-1B petitions are pending and will
likely count towards the FY 2005 statutory limit. USCIS will adjudicate
all petitions filed prior to October 2, 2004 in the order in which they
are received. USCIS is not suspending premium processing and normal
rules applicable to those cases filed on or before October 1, 2004
still apply.

How Should a Petitioner Notify USCIS That It Wishes To Withdraw a
Petition?

If a petitioner wishes to withdraw a pending H-1B petition or an
approved H-1B petition for new employment, the petitioner should send a
withdrawal request to the USCIS service center where the petition is
pending or was filed and approved. The request should be signed by the
petitioner or an authorized representative and include the filing
receipt number and the names of both the petitioner and beneficiary.

Does This Process Apply to H-1B Petitions Filed for Employment To
Commence On or After October 1, 2005?

No. Those petitions are not affected by the procedures described in
this notice and will be adjudicated in the normal fashion, regardless
of whether they are filed after this year's cap is reached. Petitioners
are reminded that, pursuant to 8 CFR part 214.2(h)(9)(i)(B), petitions
for H-1B classification may not be filed or approved more than 6 months
prior to the requested employment start date. Therefore, petitioners
filing for work to commence on October 1, 2005 should not file prior to
April 1, 2005. H-1B petitions filed for employment to commence on or
after October 1, 2005 will be counted, if otherwise chargeable against
the annual H-1B cap, against the FY 2006 numerical cap.

How Will USCIS Treat H-1B Petitions That Are Revoked for Any Reason
Other Than Fraud or Willful Misrepresentation?

For purposes of the annual numerical limitation, if an H-1B
petition was approved in a prior fiscal year (e.g. FY 2001, 2002, 2003,
2004) but revoked in FY 2005, that revocation will have no effect on
the FY 2005 cap and the number will not be restored to the total number
of H-1B new petition approvals available for the remainder of FY 2005.
However, if an H-1B petition was approved in FY 2005 (and the
approval was counted against the FY 2005 cap), and the H-1B petition
subsequently is revoked during FY 2005 for any reason other than fraud
or willful misrepresentation (e.g. the petitioner goes out of
business), that number will be restored to the total number of H-1B
petition approvals available for the remainder of FY 2005. If the same
H-1B petition is revoked for any reason other than fraud or willful
misrepresentation after the end of FY 2005, USCIS will not restore the
number to the FY 2005 cap.

How Will USCIS Process H-1B Petitions That Are Revoked for Fraud or
Willful Misrepresentation?

Section 108 of the American Competitiveness in the Twenty-first
Century Act of 2000, Public Law 106-313 (``AC21''), sets forth the
procedure when an H-1B petition is revoked on the basis of fraud or
willful

[[Page 68156]]

misrepresentation. Under AC21, one number for each petition that is
revoked on the basis of fraud or misrepresentation shall be restored to
the total number of H-1B petition approvals available for the fiscal
year during which an H-1B petition is revoked, regardless of the fiscal
year in which the petition was approved.

How Will USCIS Process H-1B Petitions That Were Originally Denied But
Subsequently Ordered Approved by the Administrative Appeals Office or
by a Federal Court?

USCIS has considered cases currently on appeal in its determination
of cases that could count towards the statutory cap. USCIS will process
approved petitions in the order that they were originally filed with
USCIS or the former Immigration and Naturalization Service.

Will USCIS Refund a Filing Fee if a Petition Is Withdrawn or Revoked?

No, USCIS will not refund the $185 filing fee when a petition is
revoked or withdrawn. The provisions contained in 8 CFR 103.2(a)(1)
preclude the refunding of filing fees on Form I-129 petitions in these
situations. USCIS will refund a filing fee only if the refund request
is based on USCIS error or if the petition is filed subsequent to
October 1, 2004. It should be noted that H-1B cap cases filed under the
premium processing program are subject to the conditions contained in
this notice.

Dated: October 4, 2004.
Michael Petrucelli,
Deputy Director, U.S. Citizenship and Immigration Services.
[FR Doc. 04-25917 Filed 11-22-04; 8:45 am]


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