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.
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