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.
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