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Good News, DHS Publishes Notice on Status for F/J Students Affected by the H-1B Cap

Good news for our F or J status readers who have status gap problem arising from the shortage of the 2004 H-1 quota!

Department of Homeland Security today (07/23/04) published on the Federal Register a Notice addressing the status gap of F/J students affected by the H-1B cap of 2004. According to the Notice, the affected students have until 07/30/04 to file the H-1 application and their duration of status will be maintained.  Therefore, readers who have this problem must act immediately to cure the problem! 

On February 25, 2004, the DHS and BCIS published a notice in the Federal Register setting forth the procedures DHS would follow as the fiscal year 2004 numerical cap for the H-1B category would be reached. That notice states that as part of those H-1B cap procedures the Secretary of Homeland Security will exercise his authority to extend the status of certain F and J nonimmigrant students if DHS has received from their prospective employer a timely filed request for change of nonimmigrant status to that of an H-1B nonimmigrant no later than July 30, 2004 and the employment start date on the petition is no later than October 1, 2004.

The Notice published today supplements the information in the February 25, 2004 notice and confirms that the Secretary of Homeland Security is exercising his authority under 8 CFR 214.2(f)(5)(vi) and 8 CFR part 214.2(j)(1)(vi) for this fiscal year to extend the duration of status for certain F and J students if their prospective employer has timely filed a request for change of nonimmigrant status to that of an H-1B nonimmigrant alien that is received by DHS on or before July 30, 2004 and contains an employment start date of no later than October 1, 2004. This measure will prevent a lapse of status for aliens who have maintained their status and would otherwise be eligible for a change to H-1B status if the annual H-1B numerical limitation had not been reached.

Accordingly, any F-1 or J-1 student continuing to maintain status whose prospective employer timely files an H-1B petition on his or her behalf prior to July 30, 2004, that contains an employment start date of no later than October 1, 2004, will continue to be in valid F-1 or J-1 status until October 1, 2004. However, for J-1 student, the alien must not be subject to the two-year home residence requirement under section 212(e) of the Act. The duration of status for dependents of affected F-1 or J-1 nonimmigrant aliens is also extended under this notice until October 1, 2004. This notice applies only to J- 1 exchange visitor students (defined at 22 CFR part 62.4(a)), and does not apply to other categories of exchange visitors.

The following are some questions answered in the Notice.

Q. What is the status of an F-1 or J-1 nonimmigrant if their H-1B petition filed is approved prior to October 1, 2004?

A. In accordance with 8 CFR 214.2(f)(5)(vi) and 8 CFR part 214.2(j)(1)(vi), the Secretary of Homeland Security may extend the duration of the status of certain F-1 and J-1 nonimmigrant aliens for such time as is deemed necessary to complete the adjudication of the change of status. DHS believes that the extension until October 1, 2004 provides it with sufficient time to adjudicate H-1B petitions filed on or before July 30, 2004. If the alien's H-1B petition is approved before October 1, 2004, the alien will continue in the extended grace period as an F-1 or J-1 student until October 1, 2004 (i.e., the date an H-1B visa will become available and the employment start date). On October 1, 2004, the alien's change of status from F-1 or J-1 to H-1B nonimmigrant status will become effective.

Q. What is the status of an F-1 or J-1 nonimmigrant if the H-1B petition remains pending beyond October 1, 2004?

A. In the unlikely event that the application to change nonimmigrant status to H-1B remains pending beyond October 1, 2004, an individual whose application remains pending will not be in valid nonimmigrant status as of October 1, 2004. However, because an extension of stay application was timely filed, the individual (and dependent(s) included on the application) will be considered as being in a period of stay authorized by the Secretary of Homeland Security until the date CIS adjudicates the H-1B petition and effectuates the change to H-1B status. As a result, such individuals will not be accruing unlawful presence as described in section 212(a)(9)(B) of the Act.

If an H-1B petition filed on behalf of an F-1 or J-1 nonimmigrant is denied, what is the status of the alien and his or her dependents?

A. Under 8 CFR part 214.2(f)(5), an F-1 student who has completed a course of study and any authorized practical training following completion of studies is allowed an additional 60-day period to prepare for departure or to transfer schools. Similarly, under 8 CFR part 214.2(j)(1)(ii), a J-1 student may be entitled to an additional 30-day period to prepare for travel. This notice simply extends that grace period. If the application to change status to H-1B is denied within 60 days (for an F-1) or 30 days (for a J-1) of the alien's completion of studies, program or optional practical training, the alien and any dependents may finish his or her respective 60-day or 30-day grace period. If the H-1B petition is denied after the 60-day or 30-day grace period, the alien's F-1 or J-1 status is terminated as of the date of the decision and he or she, as well as any dependents, must immediately depart the U.S.

Q. Can an F-1 or J-1 nonimmigrant with a pending H-1B petition travel during the extended grace period under this notice?

A. No. DHS has issued this notice to allow certain qualifying F-1 and J-1 students and their dependents to remain in the United States in lawful status while their H-1B petitions are pending, so that these aliens are not required to depart the United States and consular process. However, if a nonimmigrant alien is planning to or does depart the United States, that alien will be in a position to consular process, and therefore will not benefit from the extended grace period.

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