Cap on H-1B Visas


Q: Now that the H-1B cap has fallen from 195,000 to 65,000, is it safe for me to change employers? I am currently in H-1B status.

A: Yes, because when you change employers or extend your H-1B status, the approval of your petition does not count against the cap.

Q: I recently graduated from a U.S. univer-sity, and am working using optional practical training (OPT). My employment authorization document (EAD) expires on July 1, 2004. When should I apply for a change of status to H-1B?

A: As soon as possible. If you wait until next spring to do so, there may not be any H-1B numbers available unless Congress acts to raise the numerical cap. With a six-month processing time to change status to H-1B, I suggest that you do so now using premium processing to ensure a 15-day turnaround.

Q: Is there any possibility that Congress will pass a law to raise the H-1B cap?

A: Yes. Sen. Orrin Hatch, chairman of the Senate Judiciary Committee, is trying to get support for a bill that would raise the cap to 100,000.

Q: I am a physician who is present in the U.S. on a J-1 visa. I would like to obtain a waiver of the requirement that I return to India for two years. I heard that HHS has suspended its waiver program. Does this mean that I must return home?

A: Not necessarily. Although the Department of Health and Human Services (HHS) has temporarily suspended its waiver program, 49 of the 50 states have programs that allow them to sponsor up to 30 physicians per year for waivers. For more information, see

Q: I overstayed my tourist visa. Now my spouse has become a U.S. citizen. How long will it take me to get a green card?

A: In Los Angeles, the waiting time for a marriage interview at the Immigration Service is a little over one year. For a list of waiting times at Immigration Service offices around the U.S., see


Q: I am a registered nurse. Can I get a temporary visa to work at a hospital?

A: Yes and no. Although you probably will not be able to qualify for a temporary “visa,” you may be eligible to receive a green card through a job offer. Once your application for adjustment of status is submitted, you should be able to qualify for an EAD in no more than 90 days. See


Q: I am a computer professional in my sixth year of H-1B status. My former employer filed a labor certification for me in 2001 and it is still pending. Do I need to leave the U.S. when my sixth year is over, or is there any way that I can remain in the U.S.?

A: The law provides that if your labor certifi-cation has been pending for 365 days or- more, you can keep renewing your H-1B on a year-by-year basis until you achieve permanent residence.

Carl Shusterman is a former INS Trial Attorney and a specialist in immigration and naturalization law. (213) 623-4592.

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