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


[Federal Register: July 23, 2004 (Volume 69, Number 141)]
[Notices]               
[Page 44044-44045]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy04-83]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Bureau of Citizenship and Immigration Services

[CIS No. 2316-04]

 
Supplemental Information Regarding the H-1B Numerical Limitation 
for Fiscal Year 2004 Affecting F and J Nonimmigrants

AGENCY: Bureau of Citizenship and Immigration Services, DHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: On February 25, 2004, the Department of Homeland Security 
(DHS), Bureau of Citizenship and Immigration Services (CIS) published a 
notice in the Federal Register informing the public of the procedures 
DHS would follow as the fiscal year 2004 (FY 2004) numerical cap for 
the H-1B nonimmigrant category would be reached. This notice 
supplements that information and informs the public 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.

DATES: This notice is effective July 23, 2004.

FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, Business and Trade 
Services Branch/Program and Regulation Development, Bureau of 
Citizenship and Immigration Services, Department of Homeland Security, 
425 I Street, NW., ULLB 3rd Floor, Washington, DC 20536, telephone 
(202) 305-3175.

SUPPLEMENTARY INFORMATION: Section 214(g) of the Immigration and 
Nationality Act (Act) provides that the total number of aliens who may 
be issued H-1B visas or otherwise granted H-1B status during FY 2004 
may not exceed 65,000. On February 25, 2004, CIS published a notice in 
the Federal Register at 69 FR 8675 informing the public that the H-1B 
numerical limitation would be reached and that CIS would not process 
any additional petitions with an employment start date on or before 
September 30, 2004. The notice contained the procedures that CIS would 
follow as the cap was reached. This notice supplements the information 
in the February 25, 2004 notice and informs the public 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.

Background

    The former U.S. Immigration and Naturalization Service (Legacy INS) 
published an interim rule in the Federal Register on June 15, 1999, at 
64 FR 32146, that amended its regulations to expand the definition of 
duration of status for an F and J nonimmigrant alien whose prospective 
employer timely files an application for change of status to H-1B 
nonimmigrant classification.
    The rule, codified at 8 CFR part 214.2(f)(5)(vi) and 8 CFR part 
214.2(j)(1)(vi), provides that the Secretary of Homeland Security may 
extend the duration of status, by notice in the Federal Register, of an 
F or J nonimmigrant on whose behalf a prospective employer has timely 
filed a petition for change of nonimmigrant status to that of an H-1B 
nonimmigrant pursuant to 8 CFR part 248, provided the alien has not 
violated the terms of his or her admission to the United States. This 
extension can be accomplished at any time the Secretary of Homeland 
Security determines that the H-1B cap will be reached prior to the end 
of the fiscal year. The regulation provides that the extension shall 
continue for such time as is necessary to complete adjudication of an 
application for change of nonimmigrant status to H-1B. An alien whose 
duration of status has been extended by the Secretary of Homeland 
Security and who continues to adhere to the other terms of the alien's 
status is considered to be maintaining lawful nonimmigrant status for 
all purposes under the Act.

Will the Secretary of Homeland Security exercise his authority to 
extend the status of F-1 and J-1 students on whose behalf employers 
have timely filed applications to change status to H-1B, but who are 
unable to obtain that status because the Fiscal Year 2004 H-1B 
numerical limitation has been reached?

    Yes, if the H-1B petition meets certain requirements. This notice 
informs the public that the Secretary of Homeland Security will 
exercise his discretionary authority under 8 CFR part 214.2(f)(5)(vi) 
and 8 CFR part 214.2(j)(1)(vi) for petitions affected by the reaching 
of the FY 2004 cap. Accordingly, any F-1 or J-1 student (as defined at 
22 CFR part 62.4(a)) nonimmigrant 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. Additionally, in the case of a 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.
    Pursuant to 8 CFR 248.1(b) and 214.1(c)(4), the term ``timely 
filed'' refers to an application for a change of nonimmigrant status 
filed prior to the expiration of the alien's period of

[[Page 44045]]

authorized stay in the United States. As stated above, the application 
must also be filed by July 30, 2004, and contain an employment start 
date of no later than October 1, 2004. ``Filing'' means receipt by CIS 
as indicated by the receipt date on Form I-797.

Will the Student and Exchange Visitor Information System (SEVIS) 
maintain records of F-1 and J-1 nonimmigrants whose stays are extended?

    Yes. SEVIS will continue to maintain the record of an F-1 or J-1 
nonimmigrant whose stay is extended.

How does this notice affect F-1 and J-1 students who are entitled to an 
extension of their status?

    This extension is in fact an extension of the ordinary 60-day or 
30-day ``grace period'' already accorded an F-1 or J-1 nonimmigrant at 
the completion of his or her program and approved training. As a 
result, an alien benefiting from this extension of the ``grace period'' 
may not work for the petitioning employer or otherwise engage in 
activities inconsistent with those that would be allowed during the 
ordinary 60-day or 30-day grace period. Dependents of an F-1 or J-1 
nonimmigrant benefiting from an extended grace period must follow the 
same rules as those that apply to the F-1 or J-1 principal alien during 
the grace period.
    Nonimmigrants affected by this notice, and all aliens in the United 
States, are reminded that they have an obligation under 8 CFR part 
265.1 to report each change of address and new address to DHS during 
their stay in the United States. An alien who fails to comply with the 
change of address requirements may be removable under section 
237(a)(3)(A) of the Act and subject to criminal or monetary penalties 
under section 266(b) of the Act.

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?

    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.

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

    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?

    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.

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

    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.

    Dated: July 20, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-16937 Filed 7-22-04; 8:45 am]
BILLING CODE 4410-10-P




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