FY2006 H1Bs : April 1, 2005 Filings
Posted Apr 08, 2005
©MurthyDotCom
At The Law Office of Sheela Murthy, we continue to receive many questions as to whether it became possible to file H1B cases for Fiscal Year (FY) 2006 as of April 1, 2005. The U.S. Citizenship and Immigration Services (USCIS) has confirmed that the answer is yes. The FY2006 H1B cases can be filed six months in advance of the start of the fiscal year. The effective date of the H1B petitions, that is the date requested for work to begin under the H1B, must be no earlier than October 1, 2005. Thus, cases requesting an October 1, 2005 start date may have a filing date as early as April 1, 2005. There is confusion on this matter due to the ongoing problems surrounding the 20,000 new cap exemptions approved by Congress under the law on December 8, 2005, that remain stalled by various USCIS issues.
©MurthyDotCom
April 1, 2005 Filings
©MurthyDotCom
As regular MurthyDotCom and MurthyBulletin readers know, the government fiscal year commences on October 1 of the prior calendar year. Therefore, FY2006 starts October 1, 2005. Thus, the H1B cap numbers for FY2006 become available on October 1, 2005, as well. Since H1B cases can be filed six months in advance of their start dates, these cases may be filed as early as April 1, 2005. This is not changed in any way by the current problems with respect to the 20,000 new cap exemptions authorized by Congress for the current fiscal year, FY2005, and future fiscal years, for persons with U.S. masters' degrees and above.
©MurthyDotCom
As with last year, it is best to file cap-subject H1B cases as soon as possible. The reason for this is the reduction of the cap back to 65,000, effective since FY2004. As many of our MurthyDotCom and MurthyBulletin readers know from personal experience, the FY2005 cap was reached on the very first day of the fiscal year, October 1, 2005. This was caused by the volume of filings made during the six months preceding October 1, 2005. This pattern of early filings is expected to continue.
©MurthyDotCom
20,000 New H1B Exemptions
©MurthyDotCom
There has not been much of an update on this very hot topic of the additional 20,000 H1Bs allowed under the law passed on December 8, 2004, other than a confirmation that nothing has changed and the information in our April 8, 2005 MurthyBulletin article, Update on 20,000 H1Bs : Potential for Conversion, regarding the potential ability to convert from a FY2006 case to one of the FY2005 cap-exempt cases once an announcement is issued. The USCIS has stated that this matter must wait until they publish an announcement in the Federal Register in the form of a rulemaking. This is currently pending at the Office of Management and Budget (OMB) and cannot be published before OMB clearance. The USCIS has also indicated that they are not guaranteeing that those without U.S. masters' or higher degrees will be eligible for the additional 20,000 visas, in spite of their earlier press release indicating that they may be available to anyone normally eligible for an H1B.
©MurthyDotCom
Strategy Considerations
©MurthyDotCom
Clearly, persons who have work authorized status, usually Optional Practical Training (OPT), that will take them to October 1, 2005, should have cases filed under the FY2006 cap. They should not wait for the 20,000 cap exemption announcement, as they do not need to take advantage of those provisions. The problem arises for persons without such permission whose statuses will run out prior to October 1, 2005. These people should decide either to wait for the Federal Register notice or simply to file with an October 1, 2005 start date. They should consult with qualified immigration attorneys who can discuss the various possibilities and pitfalls. Some of these people are waiting to file if they are in status for now, seeing whether they can get one of the 20,000 exemptions to start working before October 1, 2005. Those with the greatest problem have statuses that are expiring shortly or that already expired because their employers could not file for one of the 20,000 new H1Bs on March 8, 2005, as expected. This is notwithstanding the fact that the law went into effect almost a month ago. The USCIS has provided the rather vague statement that "no one will be advantaged or disadvantaged for a fiscal 2005 number because they filed for a 2006 number." This does not address any status issues, but only the possibility that one could file for a FY2006 H1B, with an October 1, 2005 start date, and then file a second H1B case if and when the 20,000 cap exemptions become available. Again, as discussed in the April 8, 2005 MurthyBulletin article referenced above, there is a possibility that employers who file for the October 1, 2005 start date under the FY2006 cap may be able to convert these cases to FY2005 cases once the announcement is made about the 20,000 cap exemptions. Obviously, this second option is preferable to the first, but both involve wasted effort and expense most people would like to avoid.
©MurthyDotCom
We will continue to keep MurthyDotCom and MurthyBulletin readers up to date on the H1B cap and the 20,000 cap exemptions as this matter continues to unfold.