from immigration-law.com
02/26/2004: Why April 1, 2004 for Filing of FY 2005 (10/01/2004-09/30/2005) H-1B Cap Cases?
According to the current USCIS policy, it will accept the FY 2005 H-1B cap cases beginning from April 1, 2004. Apparently, this announcement is causing some confusion in the immigrant community. First why April 1, 2004 rather than any earlier or later starting date? Under the immigration regulation, the H-1B petition cannot be filer earlier than six (6) month from the H-1B effective date. Since the new H-1B cap cases cannot be effective earlier than October 1, 2004, the first date when such H-1B petition can be filed will be April 1, 2004. Second, whether once the H-1B petition is filed on or after April 1, 2004, the continuing presence of the filer after expiration of his/her current I-94 will be considered lawful pending adjudication of the H-1B petition? The answer is no. When the H-1B visa number is unavailable, the immigration authorities have been taking a position that the general rule that the timely filing of extension/change of status makes the applicant's presence in the U.S. pending adjudication of such petition/application is not applicable. Accordingly, once I-94 expires, he/she will fall out of status unless he/she files application for extension/change of status to a certain nonimmigrant visa status which does not have quota limitation. The same will apply to the F-1 students unless the USCIS announces a policy which gives an exception to the F-1 students who filed H-1B petition timely. Unlike other nonimmigrant visa classification, in F or J visa student cases, their status expires 2 month for F and 1 month for J after the completion of the program or practical training. Currently, all those F-1 students who work on OPT/EAD are anxiously awaiting the USCIS announcement to that effect. Third, once the USCIS announces such rule of exception to the F or J status holders, would such OPT/EAD holders be able to work even after expiration of EAD inasmuch as the H-1B petition is pending? No. It just will just extend authorized stay pending the adjudication of H-1B and not, repeat not, employment authorization.