Happy New (Fiscal) Year – Immigration Implications of the New Government Fiscal Year

While few, if any, of our clients and readers will be planning major celebrations, October 1st is an important date as it marks the beginning of the new government fiscal year.     This has some immigration implications for many folks — for example, H-1B cap petitions are becoming effective and the quotas for green card visa numbers are being reset for the new fiscal year.

Approved H-1B Cap Petitions (and Change of Status) Becoming Effective

October 1st is the earliest starting date for an H-1B petition filed in April under the annual cap.     As a result, almost all H-1B cap petitions have a starting date of October 1.

Notes for H-1B Employers.   Employers who have sponsored H-1B cap cases and have received approvals with change of status can now employ their workers on H-1B status.      In fact, such H-1B employers must provide employment to H-1B beneficiaries whose status was changed to H-1B on October 1st — not offering employment and pay may cause issues due to possible benching without pay claims.

If the H-1B cap petition was approved on the basis of “consular processing” (no I-94 card issued as part of the approval), then H-1B employers will need to have their workers either (a) obtain H-1B visa stamp at a US Consulate abroad and travel to the U.S. on H-1B status or, if the worker is in the US, (b) file for a change of status to H-1B  from within the U.S. and wait for an approval before H-1B employment can legally start.

Notes for H-1B Workers.   Workers who have received H-1B cap approval with change of status (I-94 card attached to the bottom of H-1B approval notice) should understand that on October 1 their status in the U.S. would automatically change to H-1B and they would be expected to start (or continue) working for the H-1B employer to maintain valid status.     In certain situations, for example holders of L-1 or L-2 status, or if the worker is not ready to start employment, the fact that the status would change automatically to H-1B on October 1 is a significant problem.   For example, L-1 holders will have to stop working for their L-1 employer and start working for their H-1B employer.        Our office can help analyze this situation and provide solutions or suggestions – a phone consultation is a quick and effective way to do so.

As noted above in the employer’s section, if the H-1B cap petition was approved with “consular processing” (no I-94 card), then the H-1B worker will either need to enter the U.S. using H-1B visa or apply to change status from within the U.S.

Annual Visa Number Quotes Reset – Green Card Approvals to Continue

Another important aspect of the new government fiscal year starting on October 1st is the fact that the annual green card visa numbers will reset.    At this time this is most important to EB-2 India green card applicants who were affected by the visa unavailability announcement earlier in September.    As of October 1, we expect USCIS to continue to issue approvals of pending I-485 cases for EB-2 India nationals with current priority dates (but note the anticipated major EB-2 India cutoff date retrogression later in the fall).

Green card applicants in the remaining green card categories – both family- and employment-based -should not see much difference because of October 1st.   Generally, the beginning of a new fiscal year allows the government to allocate a new set of visa numbers for the entire fiscal year but depending on the demand and the pending applications for each category, the government makes different decisions as to how to allocate these numbers and how to advance or retrogress the cutoff dates.

Conclusion

The new government fiscal year has some possible (and sometimes important) implications to many H-1B employers and workers, in addition to a significant number of EB-2 India applicants.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.