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Unfortunately, at 6:30pm on Tuesday, February 17, 2004, US Citizenship & Immigration Services (US CIS)
announced that the Fiscal Year 2004 H-1B cap had been reached by those H-1B petitions already filed and
pending approval.
Future H1-B petitions
According to the US CIS, petitions subject to the H-1B
cap which are received by CIS after February 17, 2004, will
not be adjudicated and will be returned to the petitioner
along with the filing fee check(s). New petitions requesting
a start date of October 1, 2004 or later will be accepted
beginning April 1, 2004. Petitions may not be filed more
than six months prior to the requested start date on the
petition.
F-1 students working pursuant to optional practical training
Among those petitions subject to the H-1B cap are those filed on behalf
of F-1 students seeking a change of status to H-1B in the United States.
While CIS may announce, in accordance with past practice and regulatory authority,
an extension of the duration of F-1 students' status and, therefore, their right to
remain lawfully in the United States while awaiting availability of new H-1B visa numbers,
F-1 students are not eligible for employment after the expiration of their Optional
Practical Training Employment Authorization Documents (EADs).
Not all H-1B petitions are subject
to the cap
Petitions requesting an extension of H-1B status, an amendment to an existing
H-1B petition,
or a request for a change of employer are not subject to the H-1B cap. Further, petitions for
employment with institutions of higher education and certain nonprofit and research institutions
are exempt from the H-1B cap. Such petitions may still be filed with a request for a start date
preceding October 1, 2004. Petitions requesting a change of employer from cap-exempt employment
to non-exempt employment with a private company or for-profit organization, however, will be subject
to the H-1B cap.
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