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 reports 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.
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