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