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 U.S.
Citizenship and Immigration Services (U.S.C.I.S.) 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 U.S.C.I.S.
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 U.S.C.I.S. 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 U.S.C.I.S. 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 U.S.C.I.S. 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 U.S.C.I.S., 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 U.S.C.I.S. 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 U.S.C.I.S.'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 - U.S.C.I.S. 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 U.S.C.I.S. 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 U.S.C.I.S. 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 U.S.C.I.S.
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 U.S.C.I.S.'s invitation
to file for FY-2006 numbers at this time.
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