H1B Cap and 7^th-Year Correction
Posted Aug 27, 2004©MurthyDotCom
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There are two significant H1B developments for the end of August 2004. The first is for those seeking to obtain H1B status for the first time. The second pertains to individuals who are at the end of the H1B tenure, seeking extensions beyond the six-year period.
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Initial H-1s : Cap Figures Released
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As regular MurthyDotCom and MurthyBulletin readers know from our most recent NewsFlash, posted August 20, 2004, according to information currently available, there were 40,000 cases filed against the fiscal year (FY) 2005 cap, as of August 4, 2004. There are a total of 65,000 cap numbers available for FY2005, although some of these are reserved for Chile and Singapore under certain Free Trade Agreements between these countries and the United States. Thus, there remain only 58,200 H1B cap numbers available each fiscal year.
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Therefore 18,000 numbers remained as of August 4. The 40,000 cases were filed over a four-month period beginning April 1, 2004; so cases have been filed at a rate of approximately 10,000 per month. At this pace, the numbers will run out either before or around the start of FY2005 in October 2004. Of course, the number of H1B filings is likely to increase as employers and employees rush to file for H1Bs before the numbers run out.
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7^th-Year (and Beyond) Extensions - Correction
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The USCIS has issued a correction regarding the timing of filing for extension of an H1B beyond the six-year limitation. The correct rule is that a "seventh-year" extension cannot be filed until the labor certification / green card filing upon which it is based has been pending for at least 365 days. This was announced in a USCIS Memo dated April 24, 2003 and explained in our May 9, 2003 MurthyBulletin article, H1B Extensions under the 21st Century DOJ Appropriations Act, available on MurthyDotCom. The USCIS reasoning is that an individual must be eligible for a benefit sought at the time the case is filed. It would not be possible, therefore, to request an extension prior to the 365th day of the green card case. This requirement holds even when one wants to file the H1B in advance, but requests a later start-date that falls after the 365-day requirement has been met. Although it may make sense, an early filing like this is not permitted in "7^th-year" extension situations.
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The USCIS had announced a contrary rule in a Service Center Operations Teleconference on July 27, 2004. This information was included in a MurthyBulletin article dated August 6, 2004. However, the USCIS once again has confirmed its earlier position so that the old rule still applies. In light of this, we reiterate our general advice to those who are approaching the five-year point in the H1B. It is necessary to begin a green card case before that five-year mark in an H1B in order to be eligible to file for a seventh-year extension. However, we do not recommend waiting until too near the H1B five-year point or the window for filing the 7^th-year extension will be very narrow. It is better to file no later than six months before the 5-year point, so that there is flexibility as to when the annual extensions may be filed.