DEPUTY DIRECTOR OF CALIFORNIA SERVICE CENTER STATES H-IB CAP FILING POLICY 

By: Roman P. Mosqueda Esq.

Christina Poulos, Deputy Director of the California Service Center in Laguna Niguel California, stated the H-IB cap filing policy of the Center at her luncheon presentation on April 16, 2004.

She was the keynote speaker at the whole-day conference on Fundamentals of Immigration Law Practice of the American Immigration Lawyers Association at Los Angeles Wilshire Grand Hotel.

            Speaking on “Processing Petitions/Applications at the CSC”, Ms. Poulos answered common questions from AILA members about the H-1B cap filing policy and effects of applications for extension of stay (Form I-539). 

Alien Must Be In Status As Of October 1, 2004 For H-1B Petition Filing: 

            As previously announced by the U.S. Citizenships and Immigration Services (USCIS), it had received enough H-1B petitions as of February 17, 2004, to meet the cap of 65,000 new workers for fiscal year (FY) 2004.

            Congress had reduced the H-1B cap from 195,000 to 65,000 H-1B beneficiaries beginning FY 2004. For FY 2003, nearly 78,000 H-IB beneficiaries were counted against the 195,000 cap.

            Thus, from February 18, 2004 up to March 31, 2004, the USCIS was not accepting H-1B petitions for first-time employment, except for aliens to be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization.

Petitions for current workers do not count towards the H-1B cap; and the USCIS  will continue to process applications for extensions, change of terms of employment, change of employers, and allowance to work concurrently in a second H-IB petition.

Since April 1, 2004, the USCIS has accepted the filing of H-1B petition, requesting FY 2005 employment, with an employment start date of October 1, 2004.

But the USCIS had not previously announced that the alien should be in legal non-immigrant status as of October 1, 2004, for the H-1B petition to be filed from April 1, 2004 to October 1, 2004.

            Thus, the statement of policy by Deputy Director Christina Poulos that the alien must be in legal status as of October 1, 2004, for the petitioner-employer to file the H-1B petition, is very restrictive.

Only aliens with permission to stay up to October 1, 2004 or  beyond, as shown in their Departure Record (Form 1-94), can be the beneficiaries of H-1B petitions allowed to be filed beginning April 1, 2004. No distinction between employment and change of status is made by such a policy. 

Mere Filing of Extension Application Not Equivalent To Legal Status For Change To H-1B Status: 

            Worse, the Deputy Director of the California Service Center also stated that the filing of an application for extension (Form I-539) will be construed as a scheme to beat the October 1, 2004 cut-off period.

            Thus, the California Service Center will deny the H-1B petition. This is again very  restrictive because it was the prior policy of the California Service Center to grant a meritorious H-1B petition for an overstaying alien, but to deny change of status. This allowed the alien to apply for an H-1B visa abroad and obtain H-1B status upon entry into the United States.

            So, not only will the employment portion of the H-1B petition be denied, with the denial of the petition, but correspondingly, also the change to H-1B status.

            Indeed, the rationalé of such a policy is that the filing of an application for extension (Form I-539), that would cover the October 1, 2004 cut-off period, is not equivalent to the legal status requirement for purposes of requesting change of status in the H-1B petition.

            Thus, according to this policy, it is useless for an alien with an allowed stay expiring before October 1, 2004, to file an application for extension for purposes of filing an H-1B petition by an employer.

            The alien interested in becoming an H-1B beneficiary needs to exit the United States and come back on or after October 1, 2004.  Or the petitioner employer files the H-1B petition with the California Service Center, with request for consular processing.

            Or the alien just files an application for extension (Form I-539) of his/her non-immigrant status (B-1, B-2, or other status), and if granted up to October 1, 2004 or beyond, then request the U.S. employer to file the H-1B petition on or after October 1, 2004.

            The employer should state that the offer of employment, which is the basis of the H-1B petition, was made to the alien after the application of extension had been filed.

            Hopefully, the California Service Center will grant change to H-1B status.  But who is to say at this time.