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Keeping you informed

H-1B Petitions Subject to Cap

    Client Alerts
  • April 20, 2004

As of April 1, 2004, employers can file H-1B petitions for all new workers (that is, workers who are subject to the Congressionally mandated cap of 65,000) requesting an employment start date of October 1, 2004 or later (Fiscal Year 2005). Employment start dates, however, cannot be indicated on H-1B petitions more than 6 months in advance which will likely create issues for employers wishing to hire employees in early 2005. We are generally recommending that all H-1B cases subject to cap be filed using the premium processing service since the H-1B cap for fiscal year 2005 may be reached earlier in the year. Most petitions for H-1B workers currently in H-1B status will not count towards the mandated H-1B cap, unless the H-1B worker is currently with an exempt employer.

The Department of State has encouraged U.S. Consulates and Embassies abroad to issue visas with deferred validity dates to H-1B and H-2B petition holders for approved FY 2005 employment. Visas issued prior to September 20, 2004 should be annotated as “not valid until ten days prior to petition validity date.” Entry into the U.S. is prohibited to aliens on H-1B or H-2B visas more than 10 days prior to the employment start-date.

Please contact us as soon as possible to review plans for any potential new hires you may be considering.

-- Increase Notice –

U.S. Citizenship and Immigration Services will be increasing filing fees on most petitions and applications filed on or after April 30, 2004. Please contact us with any specific questions you may have.

Visa Waiver and US VISIT Program:
-- Update --

On April 5, 2004, the Departments of State and Homeland Security asked Congress to extend the October 26, 2004 deadline for Visa Waiver Program (VWP) countries for 2 years to incorporate biometrics on passports. The Department of Homeland Security (DHS) would also be required to have readers for these biometric passports at all ports of entry. DHS announced that it will begin processing visitors traveling under VWP in US VISIT by September 30, 2004, at air and sea ports of entry.

Issuance of Social Security Numbers:
-- Update --

Under current Social Security Administration (SSA) regulations, the SSA can not issue Social Security Numbers (SSNs) to non U.S. citizens without verification from DHS of an alien’s status. SSNs can only be issued to alien’s authorized to work in the U.S., and L-2 and E-1/E-2 spouses can only apply for SSNs after their employment authorization documents have been issued. Employers and foreign nationals have been frustrated by delays in the issuance of social security numbers caused by this verification requirement. The SSA suggests having foreign nationals wait to apply for SSNs until 10 calendar days after admission to the U.S.

When making their applications for SSNs, foreign nationals should 1) request an acknowledgement letter from SSA verifying receipt of their application for a SSN, 2) get names of SSA staff or managers who provided information concerning their application, and 3) be sure to provide their contact address and phone number to SSA in case SSA needs to contact them to resolve problems. SSA has now indicated that where a foreign national applies for an SSN and does not receive an SSN card within 30 calendar days from the date of application that the American Immigration Lawyers Association liaison representatives can contact SSA regional representatives for case information.

Introduction of new H-1B Legislation:
-- Legislative Update –

On April 2, 2004, the "American Workforce Improvement and Jobs Protection Act" (H.R. 4166) was introduced before the House of Representatives.

H.R. 4166 would increase U.S. employers’ access to H-1B foreign professional workers by creating a permanent exemption from the H-1B cap for graduates of U.S. universities who have earned a Masters or higher degree. This exemption would be capped at 20,000 per year.

In addition, H.R. 4166 attempts to finalize the debate over the L visa program by incorporating provisions contained in pending L visa legislation. Namely, the language would target L-1B visa holders and prevent them from being placed at third party worksites, would reinstate the one-year work requirement for L-1 blanket petitions, and would require the DHS to maintain statistics on the L program.

In exchange for these benefits, H.R. 4166 would subject employers to additional fees and attestations, specifically the legislation would make permanent the $1,000 H-1B training fee and the non-displacement and recruitment attestations for H-1B dependents employers. H.R. 4166 would also impose a new $500 “fraud detection and prevention fee” on H-1B and L applications.