The U.S. Citizenship and Immigration Services (USCIS) has published a notice explaining
how it 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
has been 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.
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 employment start date prior to October
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.
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 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
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 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
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