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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


R 022310Z APR 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY KABUL
AMEMBASSY KHARTOUM
AMEMBASSY DUSHANBE
AMEMBASSY BUJUMBURA
AMEMBASSY PORT AU PRINCE 
UNCLAS STATE 074313


E.O. 12958: N/A
TAGS: CVIS
SUBJECT: DHS NO LONGER ACCEPTING H1B AND H2B PETITIONS

REF: 00 STATE 57712

1. DHS has announced that they have received sufficient
petitions to meet the congressionally mandated caps for H-
1B (65,000) and H-2B (66,000) new workers. On February
17, 2004, USCIS stopped accepting new H-1B petitions
subject to the FY-2004 annual cap. On March 9, 2004, USCIS
ceased accepting new H-2B petitions subject to the FY-2004
annual cap. DHS made this information public on its
website and it was published in the Federal Register on
February 25 and March 16, 2004 (respectively).

2. USCIS will process all H-1B petitions received by the
close of business on February 17; they will process all H-
2B petitions received by the close of business on March 9,
2004. USCIS will return all petitions (including
processing fees) received after this time and that count

towards the FY04 annual cap. Petitioners may resubmit or
file new petitions when they have received labor
certification approval for work to start on or after
October 1, 2004.

3. Consular officers must accept all approved H-lb and H-2b
petitions as having been counted properly within the
congressionally mandated caps. USCIS will continue to
process petitions filed to extend the stay of a current H-
lb or H-2b worker in the U.S; to change the terms of
employment for current H-lb or H-2b workers; or to allow
current H-lb or H-2b workers to change or add employers. In
addition, new H-lb petitions will be accepted for
employment at an institution of higher education or a
related or affiliated nonprofit entity, or at a nonprofit
research organization or a governmental research
organization.

4. Posts can continue to issue H-lB and H-2B visas against
petitions that they receive. Thus, petitions approved by
DHS fall within the cap and the corresponding visa
applications can be processed to conclusion. DHS will
resume adjudicating petitions in April or May for work that
starts on or after October 1, 2004. These petitions will
count against the FY05 cap. As DHS will continue
adjudicating such petitions well in advance of October 1, a
large pool of beneficiaries may accumulate during the
summer and apply just before the start of the new fiscal
year. This cable presents options to major H-lB and H-2B
issuing posts that wish to employ procedures to address
this possible flood of applicants.

5. DHS regulations prohibit the entry of an alien on an H-
1B or H-2B more than ten days prior to the start of his or
her authorized employment. Therefore, the Department
typically prohibits the issuance of H-1B and H-2B visas
more than ten days prior to the petition validity date --
September 20 in the case of H-lB's or H-2B's with an
October 1 start date. Due to a potentially large volume of
approved I-129H's with a beginning validity date of October
1, however, the failure to accept and process these
applications prior to September 20 could lead to a
significant workload burden on some of the larger H-lB and
H-2B issuing posts.

6. The Department advises posts with no significant H-1B or
H-2B processing workload to refrain from visa issuance

until ten days prior to the beginning of the holder's DHS-
authorized employment. The following option is provided for
those posts which anticipate a rush of H-1B or H-2B
applicants in September: as authorized in 22 cfr
41.112(c)(4), posts that anticipate a large volume of H-1B
or H-2B applicants in the lead-up to FY 2005 may issue
visas to FY 2005 I-129H beneficiaries prior to September
20, 2004. Such visas must be annotated "not valid until
(ten days prior to petition validity date)". Posts should
make every effort to educate local immigration and airline
representatives regarding the deferred validity of these
visas in order to avoid inappropriate boarding of the visa
holders. Additionally, posts must ensure that the H-1B or
H-2B holder is clearly informed of the validity date of the
visa. A letter or stamp in the NIV holders' passport should
clearly state this deferred validity.

7. CA/EX has advised that the availability of TDY
assistance will be limited. Posts with anticipated TDY
needs should refer to existing guidance in 03 State 297686
in formulating TDY requests. Requests for funds for
October 2004 and after should be included in posts' FY 2005
MRV related funding requests. Information on requesting MRV
funds for FY 2005 will be sent in summer 2004. Posts should
note, however, that as occurs every fiscal year, funds for
the new FY are not immediately available on 10/01/2004.
Until FY 2005 MRV funds are available, CA/EX will not be
able to provide funds to provide support for the H-1B or H-
2B program. CA may be able to provide limited TDY support
if posts provide CA/EX with adequate lead time (at least
one month's notice) to recruit staff.

8. Minimize considered.
POWELL





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