[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]
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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.
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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]
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