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Some Details Appearing For FY-2005 Additional 20,000 H-1B Numbers

by Alan Lee, Esq.

In this, the third week of April, a few details are emerging on how U.S.C.I.S. will handle requests for the additional 20,000 FY-2005 H-1B numbers. According to a dispatch from the American Immigration Lawyers Association (AILA) on April 15, 2005, the Nebraska Service Center said that the U.S.C.I.S. service centers have received instructions to separate out all U.S. advanced degree H-1Bs filed for FY-2006, and that the U.S.C.I.S. would give an immediate start date to those cases requesting and eligible for the start date as soon as they were authorized to do so. AILA added that it had a few reports that the Texas Service Center premium processing unit had approved some H-1B petitions for FY- 2005 start dates in cases of individuals possessing advanced U.S. degrees, but that it was not clear whether these approvals were deliberate or in error. AILA noted that these approvals were issued in cases with the designated October 1st start date, but had been annotated very clearly that the petitioner requested an immediate start date should FY- 2005 numbers become available and also that the labor condition application (LCA) had to have an immediate start date for an approval to be issued. On April 18, 2005, the California Service Center stated that it was accepting H-1B petitions with "10/1/05 or earlier" date requests, but expressed uncertainty as to whether such language would be sufficient to qualify the petitions for automatic upgrade or if an additional affirmative step would be required. Additionally, AILA reported on that day, that the regulation implementing the additional numbers had encountered further delays at the Office of Management and Budget (OMB), and it remained unclear when the rule would be published and whether it would allow filing for all H-1B eligible beneficiaries (as per U.S.C.I.S.'s reading of the statute on 3/8/05) or only those with U.S. master's or higher degrees. Finally AILA reported on April 19, 2005, that a U.S.C.I.S. headquarters official indicated that requesting a 10/1/05 start date but annotating that an earlier date is desired if and when available should not result in rejection of the petition but that there was no guarantee that the approach would be of any particular assistance in securing one of the FY-2005 numbers.

Our recent article, "Additional 20,000 H-1B numbers for FY-2005 - Should Aliens Apply for FY-2006 Instead?" suggested that, given the current state of knowledge, it would be best to hold off filing for FY-2006 numbers if the applicant truly wanted an FY- 2005 H-1B since the FY-2006 numbers would not be exhausted for some time. The question now is what effect the above information should have on our decision to file at this time. The AILA information does not pose a hard choice between filing for either 2005 or 2006 only, but gives the option of requesting FY-2006 and still retaining the real possibility of obtaining an FY-2005 number without going through a "patch" procedure (notwithstanding the California Service Center's and later Headquarters official's reservations) which could waste precious time. The issue then is not whether an individual will ultimately qualify for 2006 number as much as it is a question of whether an applicant will have a better chance of of attaining one of the limited FY- 2005 numbers by filing his or her case in the manner stated above given that some procedural information has arrived. Also the analysis should take into account the possibility of failure and its ramifications.

To further understand the possibilities, we will again examine all potential classes of identifiable H-1B filers and the expected factors to which they can look forward:

  1. 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 or have work authorizations which will expire prior to that date. The chances of obtaining an FY-2005 number by following the above procedure appear to be good as U.S.C.I.S. seems to be showing preference to this class in the distribution of whatever FY-2005 numbers will be allocated. We would wish, however, for more clarity immediately as to accepted procedure to be followed by all U.S.C.I.S. personnel so that there is no mishandling, unwarranted rejection or misidentification of cases, but perhaps this is asking too much and such filers would be better off just filing under the present state of knowledge.
  2. H-1B applicants with bachelor's or non U.S. master's or higher degrees in the same status as the above. Their fate for FY-2005 numbers is dependent upon whether the rule which is presently in OMB will allow them to be eligible for FY- 2005 numbers, and whether U.S.C.I.S. will assign them second-class status behind U.S. advanced degree holders in their bid for FY-2005 numbers. This group faces the additional uncertainty that while U.S.C.I.S. indicated that it was separating the U.S. advanced degree cases, it did not signal that it was doing so with other applications - thus increasing the possibility of some "patch" procedure having to be made to U.S.C.I.S. if non-U.S. master's or higher degrees are accepted under the rule .
  3. H-1B applicants with U.S. master's or higher degrees whose statuses will expire prior to October 1, 2005. They would be in the same situation as members of the first class except that they might be denied a change of status and possibly have to leave the U.S. to pick up their H-1B visas from an American embassy or consulate if not eligible for other statuses to cover the time. The U.S.C.I.S. adjudication will generally come soon because of the quick filing, and could conceivably occur months before U.S. Immigration and Customs Enforcement (U.S.I.C.E.) makes a decision on whether to allow F-1 and J-1 students to remain in the U.S. until October 1st. Then if U.S.I.C.E. later decided to allow such students to remain, but their changes of status had already been denied, they might have to take further steps to gain the change of status, e.g., motions to reopen
  4. H-1B applicants with bachelor's or non U.S. master's or higher degrees whose statuses will expire prior to October 1, 2005. These individuals face the most challenging questions on whether to file now based upon the incomplete available knowledge. They have all the perceived problems of the first three groups - incomplete knowledge of the procedure to be accepted by all U.S.C.I.S. personnel, doubt as to whether they are even going to be eligible for FY-2005 numbers under the upcoming rule, possibility of being handed second class status in the hunt for a number if they are included, and the prospect of a quick adjudication of the change of status request if they file now. Matched against this is the looming thought that they may be beaten to the goal of obtaining one of the FY-2005 H-1B numbers if they hesitate.
  5. H-1B applicants with or without U.S. master's or higher degrees who are overseas or are already out of status and must pick up their H-1Bs from overseas. This class falls within the risk pattern of the first two groups that going forward at this time without more from U.S.C.I.S. may result in their not complying with some as yet not stated required procedure of U.S.C.I.S. which may endanger their ability to qualify for an FY-2005 number.
In the decision to file or not at this time, other factors may play a role in the decision making . For example, is the employer willing to hold the position open until October, or does the employer insist that the applicant find another working status to cover the period until October? Is the employer willing to redo the I-129 paperwork if the case is not filed by April 30th since the current H-1B form expires after that date? Is the employer or beneficiary comfortable with the risk of filing now and encountering a possible situation of the rule being issued between the time of sending out the I-129 petition and the parties obtaining a receipt of filing - the question being whether such a situation would preclude the parties from acting if a "patch" procedure is required since there would be no ready reference to a case number at the service center? (Note, however, that William Yates, Associate Director, Operations, for U.S.C.I.S. stated at the April 4, 2005, meeting with the AILA New York chapter that procedures will be provided for FY-2006 filers in this situation or who had already obtained receipts or had already been approved for FY-2006).

What are the risks of waiting longer to file for an H-1B FY-2005 number? It would appear that there is a discernible path, although not clear. There is no risk that filing for FY-2006 with a request for FY-2005 numbers if available would cause a filing fee to be lost, only a shifting of the adjudication to FY-2006 H-1B numbers. The downside of waiting is losing the possibility of an FY- 2005 number as there are many who may just be waiting for this signal from U.S.C.I.S., however unclear, to file their H-1B cases. Just looking at the AILA report would not convince anyone that the U.S.C.I.S. has many filings at this time that would comply with its requirement for securing an FY- 2005 number. Most attorneys would not previously have risked filing H-1Bs under the unannounced annotation procedure unless the applicant was overseas or had some type of status lasting until October 1st. These types of filings so far would be small, but that does not speak for filings from now on from individuals who can see some kind of path at this time. The worrisome scenario for non-U.S. advanced degree holders is that the U.S.C.I.S. will separate out those U.S. advanced degree H-1B filings that it already has and will have before the rule's implementation, and give them preference ahead of all others even to the point of soliciting and interfiling requests for FY-2005 numbers from those who have already filed. That would be unfair and give the early filers an extreme advantage such as starting on the 50 yard line for a 100 yard race. This strategy would appear even more ill-conceived if the rule allows all to compete for FY-2005 numbers as it will finally be seen as a half-hearted effort to mollify congressional critics who believe that these numbers should only go to advanced U.S. degree holders.

In assessing the risks of waiting or going forward now, the fates appear to closely favor going forward with most applicants, albeit with incomplete knowledge. Exceptions would be those non-U.S. master's or higher individuals who can file other types of employment based applications now. All U.S. advanced degreed individuals filing now would appear to have a superior chance of qualifying. Bachelor's or non U.S. master's or higher degreed persons should decide whether they are willing to be satisfied with an FY-2006 H-1B if they cannot obtain an FY-2005 number along with dealing with any attendant consequences such as picking up the visa from outside the U.S. If so willing, they might seriously consider filing at this time. As opposed to last week when we had no details and recommended waiting instead of filing, the new yet incomplete details encourage us to take a more positive position on the issue.

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". Also see his April 14, 2005 article, "Additional 20,000 H-1B Numbers For FY-2005 - Should Aliens Apply For FY-2006 Instead?". Alan Lee can be reached at:

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