The USCIS published a "Notice" in the Federal Register on February 25, 2004 regarding H1B procedures following the announcement that the number of H1B cases filed will meet or exceed the 2004 cap for this fiscal year (FY). The Notice sets forth the procedures for continued processing of H1B cases following the cap announcement. The procedures in the notice are only for cases that are subject to the H1B cap. People who have been counted against the cap in the last six years and have not left the U.S. for a period of a year are not subject to the cap. Certain employers are also cap exempt. These include institutions of higher education and their nonprofit affiliates, as well as government and nonprofit research organizations.

H1B Cases in Pipeline and those Filed after February 17, 2004

H1B cases filed on or before February 17, 2004 will be adjudicated, if they have not already been decided. The Notice states that they will be adjudicated in the order received. However, because premium processing is still available, the rules applicable to cases filed using premium processing are still in force. No mention is made of how cap numbers will be allocated in light of premium processing.

All H1B cap-subject cases filed after February 17, 2004 with a start date prior to October 1, 2004 will be rejected. These cases will be sent back without a receipt notice. The filing fee checks will be returned with the packet. The term "filed" means received, not just mailed. For a cap-subject case to be accepted and processed under the cap for FY2004, it had to reach the USCIS on or before February 17, 2004.

H1Bs that are Rejected, on Appeal, or Approved and Withdrawn

Any cases that were rejected may be re-filed with an October 1, 2004 or later start date. Because H1B cases may be filed six months in advance, these cases could be filed as early as April 1, 2004. Of course, issues concerning the maintenance of status must be addressed separately. These cases will be unaffected by the cap announcement and the Federal Register Notice. They will be adjudicated according to existing procedures. Cap-subject cases filed with a start date of October 1, 2004 or later will be counted against the FY2005 numerical cap.

If a previously denied H1B case is on appeal with the Administrative Appeals Office (AAO) or with a Federal Court and is approved on appeal, it will be processed in the order it was originally filed with the USCIS or Legacy INS. The USCIS considered the cases on appeal in the decision as to when the cap was reached.

If a petitioning employer wants to withdraw a pending or approved H1B petition, they must send a withdrawal request to the USCIS Service Center where the case was filed. Filing fees will not be refunded for withdrawn cases.

If an H1B case was approved in FY2004 and counted against the H1B cap, the revocation of the case for reasons other than fraud / misrepresentation will restore a cap number if the revocation takes place in FY2004. In this event, the number will be restored and available for pending H1B petition approvals. If an H1B petition was not approved in FY2004, then its revocation in FY2004 for reasons other than fraud / misrepresentation will have no impact on the total number of H1Bs available this fiscal year. The number will not be restored nor made available for other H1B cases.

Under AC21, if an H1B is revoked due to fraud or willful misrepresentation one H1B number will be restored and be available in the fiscal year in which the revocation took place. The year in which the case was approved does not matter in cases of fraud or misrepresentation.

Conclusion

There is no discussion in the Federal Register Notice of how cases would be processed in the event that more cap numbers become available. The cap has put many employers and employees in a precarious, uncertain position. This is particularly true of students in their periods of Optional Practical Training. The Notice does not address many gray areas. Anyone with questions as to what the cap means for him/her should speak with a qualified immigration attorney to devise the best possible strategy.
 

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