Impact of H-1B Visa Cap Being Reached; New I-864 Income Guidelines for 2004
March 11, 2004

The 65,000 H-1B work visas allotted for fiscal year 2004, running from October 2003 through October 2004, have run out. With current H-1B visa holders generally unaffected, it is only the new, prospective H-1B employer or employee that needs to be concerned with this news.

In general, the H-1B visa is available to prospective employees of sponsoring corporations or businesses where the position at issue is considered a professional or “specialty” occupation – a job that typically requires the attainment of a university degree – and the candidate possesses such a degree, or equivalent, in the field at issue.

For those individuals who have an H-1B visa or are in H-1B status, there will be no limitation on their ability to continue working for their H-1B employer, extend their status, change H-1B employers or even add a concurrent H-1B position.

On the other hand, employers and prospective employees now seeking to facilitate the issuance of a first time H-1B visa at a U.S. consular post outside the U.S., or a change of status to H-1B (for those already in the U.S. – from student or visitor, for example) will be out of luck until October 1, 2004. Although H-1B filings for start dates of October 1, 2004 can be commenced as early as April 1, 2004, those already in the U.S. seeking a change to H-1B status, and without departing the U.S., will have to find a way to maintain their nonimmigrant status through October 1, 2004.

Exempt from the H-1B cap: It is important to note that prospective H-1B employment in an institution of higher education or affiliated not for profit entity is unaffected by the cap, and therefore new H-1B visa processing, or change of status filings, for such positions will continue uninterrupted.

New Poverty Guidelines In Effect for 2004

Before any intending family-based immigrant is issued their visa, or approved for adjustment of status, the petitioning U.S. family member or their joint co-sponsor will have to submit an I-864 Affidavit of Support and most of the time, satisfy certain income requirements (exceptions exist for those proving their financial health via assets owned, such as bank/brokerage accounts, real property, etc). The income guidelines (125% of the poverty level) for sponsors residing in the lower 48 contiguous states in the U.S. are set forth below:

2004 Poverty Guidelines for the 48 Contiguous States and the District of Columbia

————————————————————— Poverty Size of family unit guideline %125 ————————————————————— 2………………………………………12,490 15,613 3………………………………………15,670 19,588 4………………………………………18,850 23,563 5………………………………………22,030 27,538 6………………………………………25,210 31,513 7………………………………………28,390 35,488 8………………………………………31,570 39,463 —————————————————————- For family units with more than 8 members, add $3,180 for each additional member. (The same increment applies to smaller family sizes also, as can be seen in the figures above.)