Update on 20,000 H1Bs : Potential for Conversion
Posted Apr 08, 2005
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Many of our clients, participants in the MurthyForum and MurthyChat, and other concerned members of the immigrant community have been contacting The Law Office of Sheela Murthy with questions about the 20,000 additional H1B cap exemptions authorized by Congress for FY2005. The filings for these cases are awaiting a U.S. Citizenship and Immigration Services (USCIS) Notice in the Federal Register. The most recent information available comes from an American Immigration Lawyers Association (AILA) meeting on April 4, 2005. At that meeting, a high-level (USCIS) official indicated that there is still no certainty regarding the publication of the regulation pertaining to the 20,000 H1Bs. Therefore, there is no real update as to when these 20,000 cases may begin. What is significant, however, is that the USCIS official stated that the regulation is expected to have a provision permitting persons who file an H1B petition for an October 1, 2005 or later (i.e., FY2006) start date to "convert" their cases to be among the 20,000 cases available under FY2005 once the regulation is implemented. It is possible to file for a FY2006 H1B cap case immediately, as these filings were allowed as of April 1, 2005, with an October 1, 2005 start date.
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Prior to this announcement, many were trying to decide whether to file under the FY2006 cap with an October 1, 2005 start date or wait for the USCIS announcement in the Federal Register about the 20,000 FY2005 cases. This is a particularly important issue for persons whose statuses will lapse prior to October 1, 2005 and who need an earlier starting date. Many of these people were in a dilemma between trying to get one of the 20,000 exemptions and potentially waiting too long to file under the FY2006 cap, thus missing that opportunity also. The recent comments of the high-level official and certain communication that our Office received from the USCIS seem to indicate that one whose status expires any time on or after March 8, 2005 until the new filing allowed under the 20,000 additional exemptions will potentially be accommodated and given some special consideration and relief. It may be that such a person will be considered to have maintained legal status in the U.S. if his or her H1B is accepted under the 20,000 exemptions after the announcement in the Federal Register. We at The Law Office of Sheela Murthy are pleased that the USCIS appears to be moving in this direction, although, until the announcement is made, nothing can be certain. We believe that the USCIS should take the steps necessary to regard such H1B applicants as maintaining valid legal status and eligible for a change of status from within the United States since the USCIS delay in publishing the notice should not adversely affect these blameless individuals.
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Assuming that this conversion provision of the regulation allows cases to be converted from the FY2006 quota to the FY2005 quota granting the 20,000 additional H1Bs survives review at the Office of Management and Budget (OMB) and ends up being published, waiting to file an H1B only under the 20,000 exemptions may no longer be the best option for many. The safest course likely would be to file for an October 1, 2005 start date with the goal of "converting" the filing, depending on how the USCIS allows that to occur. One who is deciding how to pursue H1B status should speak with a knowledgeable immigration attorney regarding possible options and strategies available under this highly volatile and fluctuating scenario.