Twenty Thousand Additional H1Bs : FAQs and Answers
Posted Jan 28, 2005
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Through our clients as well as participants in the MurthyChat and MurthyForum, we have identified the frequency of particular questions on the recent change in the law allowing for the addition of 20,000 new H1B cap exemptions for people with U.S. Masters' Degrees or above. Those who are unfamiliar with this change should review our December 8, 2004 NewsFlash entitled, Omnibus Bill Signed, USCIS Clarifications.
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When can I file my case? When will I be able to start working if my employer files an H1B case under the new 20,000 exemption?
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Answer : The law establishing the 20,000 additional H1Bs for each fiscal year becomes effective from March 8, 2005. The USCIS has clarified that an H1B case under the 20,000 additional filings cannot be filed until that date. Since this is an exemption from the regular 65,000 H1B cap, the start date requested may be immediate. This means that these H1B filings could request a start date of March 8, 2005 or later until September 30, 2005. Then again starting on October 1, 2005, another 65,000 regular H1Bs and an additional 20,000 H1Bs under this quota for holders of Masters' degrees or higher from U.S. universities would become available. If requesting a date, it is necessary to comply with the rule that H1B petitions may only be filed six months in advance of the start date. When one may begin to work depends upon one's status. Assuming the individual has never held H1B status before, s/he will be able to work only after the case is approved and a valid I-94 card with the H1B approval notice has been received.
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I received my Master's Degree from a U.S. university several years ago. I have been working abroad since my graduation (or I studied in the U.S. as an H-4). Are these 20,000 exemptions only for people who are currently students? Does it matter how long ago I received my degree?
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Answer : The exemptions are for anyone who has completed a U.S. Master's Degree or above. The person does not have to be in the U.S. as a student. It does not matter how long ago the Master's or higher degree was received.
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I have a U.S. Master's Degree and an employer that is willing to hire me and sponsor an H1B. Does the employer have to show that the master's degree is required for the job in order to request one of the 20,000 exemptions?
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Answer : The exemptions are available to anyone with a U.S. Master's Degree or above. There is no need to show that the job requires a master's degree in order to qualify for one of the 20,000 exemptions.
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I have a Master's Degree from a very prestigious foreign school. It is one of the best schools in the world and I graduated first in my class. I have an evaluation stating that my degree is equivalent to a U.S. degree. Can I qualify for one of the 20,000 new exemptions? Is there a way I can ask for some special consideration?
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Answer : No. A U.S. degree is required. Foreign equivalents will not work no matter how prestigious the school or how well the student performed.
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We at The Law Office of Sheela Murthy, P.C. hope that our answers and explanations shed light on this issue for MurthyDotCom and MurthyBulletin readers who plan to take advantage of the new law. We note that, since the additional H1Bs under this law are limited, it is safest to file the H1B petition as close to March 8, 2005 as possible to avoid being left out and unable to start work until October 1, 2005, once the new H1B quota opens for the next fiscal year.