With the arrival of the 2004 fiscal year on October 1, 2003 the H-1 visa has
undergone several significant changes. For instance, the H-1 cap has
retrogressed. For FY 2004 only 65,000 new H-1s are permitted, which is the
pre-2000 level. Unlike the per-2000 cases however, current law allows for
expedited adjudication of Petitions under the USCIS' Premium Processing
Program. Another significant change is that the $1,000 H-1 Training filing
fee is temporarily on hold pending likely future Congressional action.
Several members of Hammond Law Group recently attended the Ohio AILA
Chapter's First Annual Fall CLE on October 8, 2003 where many of these
recent developments were discussed. The HLG delegation was led by Sherry
Neal, Ohio AILA's Vice Chair, and included attorneys Craig Clark and Peter
Le, a recent addition to the HLG team. Our Legal Assistant and Paralegal
attendees included Lisa Kampman, Rita Montgomery, Deborah Bentley and
Jennifer Redmond. The Conference included panels led by members of the
Department of Labor, USCIS and Ohio Foreign Labor Certification, as well as
prominent practitioners such as Ms. Neal.
A number of interesting developments came to light at the meeting:
The USCIS reports that H-1s are being filed at record levels, which will
surely mean the H-1 cap will be reached and the processing of new H-1s will
be shut-down at some point. Currently HLG projects that the H-1 cap will be
reached by the Second Quarter of 2004.
The USCIS is also reporting that most new H-1 petitions are being filed via
the USCIS' Premium Processing Program. USCIS opines that this is probably
because employers had already allocated $1,000 for the training fee and are
simply shifting previously budgeted money.
As a result of the record new H-1 filings, USCIS is contemplating suspending
the Premium Processing Program, at least for new H-1 filings. USCIS is
worried that they will be unable to reconcile both Premium and non-Premium
Process-filed petitions unless they suspend the Premium Processing Program.
In an attempt to save the H-1 Premium Processing Program, the USCIS has
begun shifting workers from their I-140 processing and I-485 processing
lines to their H-1 worker lines. As a result employer-petitioners should
expect to see increased processing times for I-140s and I-485 cases.
Likewise, employers should also expect to see increased Requests for
Evidence in H-1 filings, primarily because of untrained or inexperienced H-1
line staff.
Curiously, the Department of Labor had no comments on the long-awaited PERM
Program, which will dramatically change the Labor Certification program. At
the AILA Annual Meeting in June 2003, the DOL suggested that the PERM
program would go on-line In the Fall 2003. It now appears that the PERM
Program is delayed once again.
