U.S. Citizenship and Immigration Services (USCIS) reminded employers this week that Guam’s and CNMI’s five-year H-1B and H-2B cap exemptions will end on December 31, 2014. With a sharp increase in U.S. military-related projects in Guam of late, employers in the country are experiencing a shortage of lesser-skilled and highly-skilled workers, from construction workers through to accountants and engineers. Although officials in Guam are lobbying hard for an extension of the exemption, so far all efforts have been in vain as the Congressional deadlock on all immigration-related bills is halting a range of business immigration initiatives, including the renewal of Guam’s exemption. The major concern for those lobbying for an extension of the exemption is that there will be no action on any immigration-related reform until after the November mid-term elections, and there is no guarantee that Congress will act to extend the exemptions during the few days it is in session after the November election.

By way of background, the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, included a provision that exempted H-1B and H-2B workers performing assignments in the CNMI and Guam from the Congressionally-mandated H-1B and H-2B annual numerical limitations from November 28, 2009, to December 31, 2014. After December 31, 2014, H-1B and H-2B workers performing assignments in the CNMI and Guam will no longer be exempt from the H-1B and H-2B annual cap. All H-1B or H-2B petitions for workers in Guam or the CNMI received on or after January 1, 2015, or (if received before that date) with employment start dates on or after January 1, 2015, will be subject to the annual H-1B or H-2B cap unless otherwise exempt.

Unless a last minute exemption renewal is passed by Congress, employers in Guam and CNMI should understand this means USCIS will only accept H-1B and H-2B petitions (new, change of employer and extensions) based on the current exemption:

• That are filed before December 31, 2014; AND
• Have an employment start date on or before December 31, 2014.

Employers may want to consider filing extensions for any employee whose H-1B or H-2B petition expires before December 31, 2014, to maximize the employee’s period of stay and avoid any lapses in authorization to work in the United States. For example, if an H-1B worker’s status expires on July 1, 2015, an employer should seriously consider filing an extension of H-1B status for that employee before December 31 2014; otherwise, the employee will be considered subject to the H-1B cap and will experience a lapse in employment authorization when his or her H-1B expires on July 1, 2015, because the earliest start date on 2016 H-1B cap cases is October 1, 2015. Employers are warned that requesting an early extension more than 180 days prior to the expiration of the employee’s current status may result in a rejection by USCIS unless there is a valid change in the employee’s assignment that warrants the filing of a petition to amend and extend the employee’s status.