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Additional FY 2005 20,000 H-1B Cap Numbers Regulation

by Alan Lee, Esq.

The regulation for the additional 20,000 H-1B numbers for fiscal year (FY) 2005 (10/1/04-9/30/05) has cleared the Office of Management and Budget (OMB) and is slated to be published on May 5, 2005, with a starting date of May 12, 2005 (5 business days after publication). On the question of whether the 20,000 numbers will be available to just U.S. master's or higher degree holders or all qualified H-1B applicants, it appears that the U.S.C.I.S. gave in to congressional pressure during the OMB clearance process and the regulation as written only allows U.S. master's and higher to obtain the benefits of the 20,000 numbers. The agency had previously declared on March 8, 2005, that all qualified H-1B applicants would be eligible.

All petitions across the nation can only be filed at a specific address at the Vermont Service Center:

U.S.C.I.S. Vermont Service Center
1A Lemnah Drive
St. Albans, Vt. 05479-7001

The first date of filing will be the fifth business day after publication of the regulation (May 12, 2005 under current schedule). It is expected that the cap numbers will be exhausted very quickly. The U.S.C.I.S. has made provision for such occasion by stating that if the numbers are exhausted on the first day, cases received on the next day will also be accepted to accommodate those who are filing from remote places, and the cases will be placed in a random selection process by computer to determine which will obtain the coveted numbers.

For those who were concerned that U.S.C.I.S. would reduce the 20,000 number by the amount of H-1B numbers that it overallocated for FY-2005 (approximately 10,000), it is clear that this will not happen from the general language of the regulation and U.S.C.I.S. projected figures on revenue that it expects to attain from the release - the amounts reflecting full use of 20,000 numbers.

For those who have already filed and asked for FY-2006 dates, the U.S.C.I.S. has provided an upgrade procedure whereby the petitioner must submit 3 items: A letter requesting the upgrade; a certified labor condition application or a copy thereof if not already provided with the FY-2006 petition valid for the period of requested employment; and either a copy of the approval of an FY-2006 petition or if not yet approved, a copy of the receipt notice of the FY-2006 petition or if the receipt has not yet been received, a copy of the first two pages of the I-129, or a new I-129 form. Requests for upgrade must go to the same address at the Vermont Service Center and will compete with other H-1B filings for purposes of securing an FY-2005 number. There is no fee for an upgrade. If the upgrade fails to secure an FY-2005 number, the original petition will be deemed still in line with its original date for purposes of securing an FY-2006 cap number.

The premium processing program was also discussed, but in the context of individuals who wished to begin their work earlier and not for purposes of having a better chance of gaining an FY-2005 number. The agency confirmed that it would make numbers available to petitions in the order in which the petitions are filed.

The U.S.C.I.S. also gave a list of caveats for H-1B filers:

  • The $500 Fraud Prevention and Detection fee and the $1000 premium processing fee (for those who wish to expedite their cases) must be paid by two separate checks while the $185 basic filing fee and Job Training fee of $750 or $1,500 can be combined in one check.
  • No e-mail filings will be allowed for FY-2005 or FY-2006 H-1B petitions.
  • The date of publication will no longer control the date on which the U.S.C.I.S. determines that it has enough H-1B petitions for cap purposes. For final day filings, U.S.C.I.S. in the future will use random selection by computer of all cases.
  • The agency will assume that anybody who is requesting an FY-2005 date will also want an FY-2006 date if he or she is ultimately not selected for an FY-2005 number. Those only wishing an FY-2005 H-1B must annotate on top of the first page of the I-129 the legend "FY-2005 only". If so, the U.S.C.I.S. will return the petition with all fees or refund the fee amounts.
The U.S.C.I.S. has also given a boon to H-1B filers in stating that it will allow continued use of the old I-129 form until May 30, 2005. Previously the final date for usage was April 30th. Of course, this information would have been more useful had it come earlier as many H-1B petitioners have already gone through the inconvenience of revising all of their applications.

Finally it appears that the selection process will be fair in not penalizing those who have not yet filed or those who have already filed using the device of an FY-2006 filing and annotating that the petitioner requests an FY-2005 date if available. One only wishes that the agency could have provided more clarity instead of subjecting all filers to an obscure and anxiety-ridden process, especially since much of the information in the regulation could have been released beforehand in the form of an agency memorandum. Also, that the agency would have had more backbone in defending its reading of the statute to allow all qualified H-1B applicants to apply instead of bowing to critics in Congress during the regulation's OMB clearance process.

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?" and "Some Details Appearing For FY-2005 Additional 20,000 H-1B Numbers." 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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