Mr. Lee's Article "Open Season For New H-1Bs"

By Alan Lee, Esq.

Looking at the news from U.S.C.I.S. during the past few days on its receipt of FY-2010 H-1B petition filings, it appears that H-1B season is open again and that the cap will not be filled for the approximate 85,000 visa slots for at least a month.

At this time, every H-1B beneficiary who has already applied and whose organization has done everything according to correct procedure should receive a cap number. Even if there were errors causing a petition to be rejected, the chances are that a rejection and resubmittal will occur fast enough to secure a cap number.

As stated recently by me, other attorneys, and this publication, the number of anticipated new H-1B petitions would be seriously impacted by a host of reasons, including the recession, companies accepting TARP funds not participating, and bad public image for companies sponsoring H-1B petitions while shedding U.S. workers; and that those H-1B applicants applying this year would have much better chances of being accepted within the cap numbers than in previous years. But little could anyone predict the vastness of the shortfall in this year's numbers. In FY-2009, U.S.C.I.S. received approximately 163,000 petitions for the approximate 85,000 openings. This year, during the five business day acceptance period, it received approximately 62,000 petitions (based on its 4/9/09 update that it had received approximately 42,000 H-1B petitions counting towards the 65,000 cap, and approximately 20,000 for aliens with advanced degrees towards the 20,000 U.S. master's cap). This means that the agency only received about 38% of last year's submissions; that the cap is only about 73% filled; and that approximately 23,000 open slots still remain for new cap petitions.

Why do we believe that the cap will remain open for at least a month?

First, we should dispel a possible misimpression in the U.S.C.I.S. communications concerning the 20,000 U.S. master's cap being almost filled. Although technically correct, individuals with U.S. master's and higher degrees are not disadvantaged. The 20,000 cap was only put in place to allow individuals with U.S. master's or higher degrees to gain a preference over those with just bachelor's qualifications. Therefore there was a 20,000 set-aside exclusively for this class. If and when the masters cap has been filled, U.S. master's and higher degreed individuals who are being sponsored for H-1B cap petitions will be lumped in with the general pool of remaining cap numbers.

Second, it takes time to reload. Since everybody thought that there was a strict deadline for putting in petitions to U.S.C.I.S., every organization that could have and was willing to do so petitioned in the five business day period from April 1st to April 7th. At this time, there are very few organizations planning for new H-1B sponsorship.

Third, even though the public spotlight on H-1B season has passed, we believe that many large organizations will continue to avoid sponsoring H-1B petitions for the same reasons as listed above.

Fourth, a goodly number of H-1B petitions for FY-2010 were from organizations for beneficiaries who were not selected in last year's H-1B "lottery." Many of these organizations felt an obligation to sponsor even though they were not planning to petition for new H-1B workers.

Fifth, the next new class of graduates will not come onto the market for H-1B purposes until May when the graduates will have completed their requirements for graduation. Prior to that time, the candidates might not be deemed qualified for H-1B visa status as they have not yet graduated. U.S.C.I.S. requires at minimum a statement by an authorized school official that the individual has completed all requirements for graduation. Exceptions exist of course for graduate students whose baccalaureate degree is in the H-1B field of specialty or individuals whose combination of prior schooling, training, and work experience may yield an equivalent degree in the field of H-1B specialization.

With the above as background, we believe that any H-1B cap petition filed within the next month will stand an excellent prospect of capturing an H-1B number for FY-2010. Potential H-1B candidates may do well to explore employment opportunities with small to middle sized organizations which are not in the public eye and therefore not under the pressure of public image and opinion.

 


The author 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. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2009 Alan Lee, Esq.

 

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