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Additional 20,000 H-1B Numbers For FY-2005 - Should Aliens Apply For FY-2006 Instead?

by Alan Lee, Esq.

What are we to make of the present situation of the additional H-1B numbers for this fiscal year (October 1, 2004-September 30, 2005) given by Congress under the H-1B Reform Act of 2004? The numbers were supposed to have been released on March 8, 2005, but we are now in the second week of April, and no one knows exactly what is happening.

William Yates, Associate Director, Operations, for USCIS in an April 4, 2005, meeting with the American Immigration Lawyers Association (AILA) New York chapter, said the rule was still in the Office of Management and Budget (OMB) and that the big holdup was that members of Congress were weighing in as to whether the numbers will be available for all applicants or just for those with U.S. master's or higher degrees. (From its reading of the statutory language, the USCIS previously announced on March 8, 2005, that the available numbers would be applied to all qualified H-1B nonimmigrants and not just to those holding a master's or higher degree from U.S. institutions of higher learning). He stated that USCIS has written several iterations of the rule. Mr. Yates also suggested that individuals who wish to file for FY-2006 H-1B's could do so and still qualify for FY- 2005 H-1Bs once the rule comes out since the rule would provide a procedure for such filers even if they just sent in the H-1B petition and had not yet received a receipt; if they had received a receipt but the case was not yet approved; or if they had already received an approval for FY-2006.

Guessing what kind of procedure USCIS will finally come up with is difficult, but we believe that whatever procedure is used, there may very well be a problem with timing. The number of H-1B numbers is not large ( Mr. Yates said in the meeting that there would be 20,000 numbers available, but whether he meant that all 20,000 would be distributed or that USCIS had received 20,000 H-1B applications from U.S. master's degreed or higher individuals and was reserving comment on the effect of the 10,000 H-1B overuse for this fiscal year is unknown), and by the time that the procedure is followed, it could already be too late to capture one of the numbers.

The possible range of patch procedures in our opinion could go from requiring a letter from the employer asking that the petition's starting date be changed to October 1, 2005 to accepting such a letter from the petitioner's representative (this might be faster) to requiring the petitioner to submit a new I-129 form with new dates of employment. It appears that the only procedure under which FY-2006 filers would be assured of competing effectively with other filers as soon as the rule comes out would be to reserve cap numbers for such filers and set a date by which they could complete the required procedure to keep the reserved number. However, this would disadvantage other filers and essentially unfairly allow individuals to file for FY-2005 numbers prior to the rule's promulgation.

In the following, we will assume that the petitioning organization wishes the alien to continue work or begin work as soon as possible, and that the alien has the same wish. In this analysis, we will not take into consideration ambivalent desires of the employer and alien to take either fiscal year. A second assumption is that the rule which is making its way through OMB will be published soon and not months hence, and that the applicant's legal status will not expire before the rule comes out. Looking at the possible classes of applicants for the numbers, we can break down the categories and suggest that readers consider the following:

  • H-1B applicants with U.S. master's or higher degrees whose statuses expire on October 1, 2005, or later but are not allowed to work now or have work authorization which will expire prior to that date. There is currently no need to apply for FY-2006 H-1Bs as there are certain to be enough FY-2006 numbers in the short future anyway if they do not make the cut for 2005.
  • H-1B applicants with bachelor's or non-U.S. master's or higher degrees in the same situation as the above. For the same reasons stated above, there is no need to immediately apply for a FY-2006 H-1B. The fact that this entire class might be barred from applying for FY-2005 numbers when the rule comes out should not be a factor in now deciding to apply for FY- 2006 as the theretofore unfiled application could simply be retooled to request a new starting date in October.
  • H-1B applicants with U.S. master's or higher degrees whose statuses will expire prior to October 1, 2005. There is every reason for persons in this group to file for FY-2005 H-1B numbers and correspondingly no reason to now apply for FY-2006.
  • H-1B applicants with bachelor's or non-U.S. master's or higher degrees whose statuses will expire prior to October 1, 2005. They should also wait to file for FY-2005 numbers because there should be sufficient FY-2006 H-1B numbers into the near future.
In other words, given the present state of knowledge, there is no set of circumstances in the above that would encourage an application for FY- 2006 for any of the above classes. Even if the final rule disqualifies non-U.S. master's degreed persons or the application is rejected as too late, there will still be sufficient time to submit applications for FY-2006 numbers without much further expense or work. Also, for individuals whose statuses will expire prior to October 1, 2005, there is no assurance that they will be allowed to remain in the U.S. to change status for a FY-2006 H-1B. (In all previous years involving an over subscribed cap, F-1 and J-1 students whose statuses expired before October 1st were allowed to stay legally but not work in the interim. Mr. Yates clarified in the April 4th meeting with the AILA New York chapter that he had no authority over whether to allow students to remain as that was not within the province of the USCIS, but U.S. Immigration and Customs Enforcement (U.S.I.C.E.), and that the decision in 2004 by U.S.I.C.E. not to allow students to stay was reversed by Homeland Security Chief Tom Ridge). Those who do not qualify for FY-2005 H-1Bs and will expire before 10/1/05 can either to leave the United States before their time expires and be consular processed for FY-2006; attempt to extend or change status to another non-immigrant category ( note that USCIS has said in the past that it would look at the representations of individuals requesting B-2 status changes before adjudicating the H-1B change of status requests); or if F-1 or J-1 students, wait to see whether U.S.I.C.E. will authorize them to remain until October 1st without work authorization.

Historical H-1B usage does not indicate that we will run out of H-1B numbers for FY- 2006 at any time within the very near future. Even if we take into account the USCIS's miscounting of H-1B numbers in FY-2005 so that the actual number used exceeded allowed limits by approximately 10,000, and even if the 10,000 numbers are subtracted from the numbers for FY-2006, that would still leave at least 90,000 split between the numbers to still be distributed in this fiscal year and the amount to be allocated in the next. (In FY-2006, we will assume that approximately 62,000 H-1B numbers will be available even counting the set-asides for those qualifying under the Singapore/Chile Free Trade Agreement - USCIS just said that the FTA H-1B numbers were not "remotely" close to being exhausted in this fiscal year - and there will be another 20,000 after the first 20,000 U.S. master's or higher H-1Bs are subtracted from the H-1B numbers. Thus, the calculation becomes 20,000 FY-2005 numbers plus 62,000 plus 20,000 FY-2006 numbers minus the10,000 over-allocated H-1B numbers in FY-2005 = 92,000).

Looking at the pattern of H-1B usage just in this fiscal year alone, it took six months (April 1, 2004-October 1, 2004) to exhaust 65,000 numbers. Although one could make the argument that we now have pent up demand since H-1B cap visas have not been available for six months (October 2, 2004 - present), and USCIS can expect a veritable flood of applications which will exhaust the FY-2006 quota within a few weeks, that view in our opinion is incorrect as it does not adequately take into account the role of the employer. If H-1B filing was only a decision of the beneficiary, perhaps such a scenario could occur. But given that an employer must be willing to go forward with the sponsoring process, employers have certain patterns of hiring during a year, and that the employer chooses the time for H-1B sponsorship, the USCIS may be faced with a minor onslaught at the beginning, but nothing of such proportions to exhaust the number of available H-1B visas immediately for 2006.

We believe that this analysis would hold for everyone even if the USCIS ultimately disqualified all except for masters or higher individuals from U.S. institutions of higher education from consideration of the 20,000 additional numbers. Although we do not possess statistics to support this statement except the anecdotal evidence of our own law firm filings, we believe that U.S. master's and higher degreed individuals have not traditionally comprised even half of the available H-1B filings. In the worst-case scenario, all others would compete for approximately 52,000 numbers, the normal 65,000 FY allocation less the FTA H-1B and miscounted FY-2005 numbers.

Two additional factors would deplete the number of expected filings between now and the time that the rule comes down when everybody can make his or her own decision to file for either FY-2005 or FY-2006 - the first being that Mr. Yates' encouragement for individuals to file for FY-2006 is late and will most likely not have a sizable impact at this time, and second that the last two classes described above have every incentive to wait for the rule to be passed before filing.

Against this is the common perception that the FY-2006 H-1B numbers opened up for submission of applications on April 1, 2005, and that many individuals may already be filing for that year's quota. However, as stated previously, H-1B filings are dictated by the employer and not the alien. Also most students from colleges and universities would not yet be qualified for H-1B issuance as they would not have completed all requirements for graduation until May or June. Finally, the pattern of most optional practical training grants ( full-time F-1 students are generally allowed one year of optional practical training following their graduation with a U.S. employer to better train them for their careers) leaves trainees with statuses expiring before October 1st even with the available grace period, which means that they are not assured of being allowed to stay until October 2005, and thus would be much more inclined to hold off filing for FY-2006 in hopes of qualifying for FY-2005 numbers.

Under the circumstances, individuals who still hope for an H-1B cap number for FY-2005 should carefully consider USCIS's invitation to file for FY-2006 numbers at this time.

2005 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Related to this article, Mr. Lee correctly analyzed the statutory language to allow the additional 20,000 H-1B numbers to apply to all qualified H-1B applicants in his December 4, 2004 article, "Season's Greetings from the Immigration Front". Alan Lee can be reached at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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