H-1B Practice In The Twilight Zone
Unless Congress acts by September 30, 2003, many provisions of the H-1B visa program will sunset on October 1, 2003.
From October 1 onwards, the cap on the number of H-1B petitions for the fiscal year will decrease from the current 195,000 to 65,000.
The numerical limitation of 65,000 will not apply to a nonimmigrant who has been sponsored for an H-1B visa by an institution of higher education and non-profit entity related to or affiliated with any such institution. Nor would it apply to an H-1B visa petition that has been filed by a non-profit research organization or a governmental research organization. The numerical limitation will also not apply to H-1B extension requests.
The USCIS announced on August 26, 2003 that during the first three quarters, 56,986 petitions were used up against the 195,000 cap.1 In addition, 47,813 petitions were pending adjudication, of which only one-third would be counted against the cap of 195,000. If the rest of the approximately 30,000 petitions are not adjudicated by September 30, 2003, they will fall under the numerical limitation of the new fiscal year, which is only 65,000.
It would, therefore, be advisable for petitioners subject to the numerical limitation to file their petitions through premium processing and have them approved by September 30. The premium processing program, however, will continue after October 1. At present, USCIS service centers take over three months to adjudicate petitions that are not filed through the premium processing program. A petition filed on October 1 would probably get adjudicated by the end of December 2003 or early January 2004. By then, the 65,000 cap might be reached. Therefore, after October 1, it would be advisable to use “premium processing” not just to ensure a quick adjudication but to also ensure that the petition will get approved before all numbers are used up.
There is always a silver lining around a dark cloud. Even if the numbers fall to 65,000, the dependent employer attestations will sunset. These attestations were introduced by the American Competitiveness and Workforce Improvement Act of 1998 and they have been highly onerous on employers with more than 50 employees who have 15% or more of their workforce on H-1B visas.2 Dependent employers also have to attest that they have not displaced US workers and also attest to the fact that they have conducted good faith recruitment of US workers. If a US worker is as qualified as the H-1B worker, they have to offer the job to the qualified US worker. A dependent employer is not subject to the attestations if it petitions for an exempt worker. An exempt worker is one who is paid a salary of $60,000 or who possesses a master’s or an advanced degree that is required for the position. These provisions will sunset on September 30. On October 1, there will be no such concept as a “dependent employer.”
The $1000 training fee for H-1B visa petitions will also sunset on October 1, 2003 leaving only the $130 filing fee (and a premium processing fee of $1,000 if one decided to go by that route).3 If an employer is not subject to the numerical limitations, such as an employer filing an H-1B extension, it may be preferable to file on or after October 1 as the employer will not incur the $1,000 training fee and will only have to pay a basic filing fee of $130.
Also sunsetting is the ability of the Labor Department to initiate an investigation without a complaint from an aggrieved party.
According to an AILA bulletin, it is possible that Congress will act on the cap and other items, but it is unlikely that such action could take place before October 1.4
*Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.
1The USCIS also stated, according to its press release, “USCIS Approves Latest H-1B Petitions Statistics for FY 2003” (available on www.immigration.gov), that it had approved 84,534 H-1B petitions for persons who are exempt from the cap.
2If an employer has 25 or fewer full-time equivalent employees, it will be considered dependent if it employs more than 7 H-1B nonimmigrants. Employers with at least 26 but not more than 50 full-time equivalent employees will be considered dependent if they employ more than 12 H-1B nonimmigrants.
3 After going to press, the BCIS issued a Memo indicating that any H-1B petition filed on or after October 1, 2003 that includes the additional $1,000 filing fee together with the base filing fee of $130 in a single remittance should be rejected by Service Centers as improperly filed. If the fees are in separate remittances, then the $1,000 fee can be rejected and the petition and filing fee accepted. The Petitioner must still file Form I-129 with Form I-129W, the H-1B Data Collection and Filing Fee Exemption. The filing fee information in Part B of Form I-129W may be omitted.
4 “AILA’s Immigration This Week,” Issue 35-03, September 11, 2003.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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