Where Did the Chile / Singapore H1B Numbers Go?
Posted Nov 04, 2005
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The USCIS responded on October 21, 2005, to an inquiry from the U.S. Senate, signed by five senators and dated September 20, 2005, regarding H1B numbers for Fiscal Year (FY) 2005 that were to be set aside for nationals of Chile and Singapore. Under the law, if any of the numbers set aside for nationals of Chile and Singapore are not used, they are to be made available to individuals from other countries at the end of the fiscal year. They are only to be made available to cases filed in the particular FY, however, and not rolled over to the next. Fiscal Year 2005 ended on September 30, 2005. Thus, if there were unused numbers, as explained below, the law requires that they be made available to FY2005 applicants during the beginning of FY2006, which began October 1, 2005. The USCIS's reply to the senators' letter, however, essentially stated that these numbers will not be available because too many H1Bs were issued in FY2005, and they did not accomplish a "set aside."
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At The Law Office of Sheela Murthy, we have heard from many MurthyDotCom and the MurthyBulletin readers who have asked about the unused Chile and Singapore H1B numbers. In effect, the senators were asking the USCIS to ensure that the unused numbers from FY2005 would be available at the beginning of FY2006 (October 1, 2005). The correspondence between the U.S. senators and the USCIS reveals the nature of the problem.
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The Senate's Position
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The senators' letter discussing the manner in which H1B numbers are to be managed stated that, first, the Department of Homeland Security (DHS) must set aside 6,800 H1B numbers for Chile / Singapore and reduce the generally available H1B numbers by that amount. (So, essentially, subtract 6,800 from the 65,000 cap and set the 6,800 numbers aside for the Chile / Singapore cases.) Second, at the end of the FY, any unused numbers from the Chile / Singapore allotment are supposed to be returned to the general supply of numbers for that same fiscal year. Thereafter, during the first 45 days of the next FY, these remaining numbers would be available to be issued to foreign nationals who applied for H1Bs during the same FY to which the numbers belong (in this case, FY2005).
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The U.S. Senate pointed out that the USCIS has agreed with this interpretation in previous press releases and public statements. They also noted that, in FY2004, the USCIS made these numbers available and added them back into the FY2004 number supply.
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Procedure for Chile / Singapore Set-Aside of H1Bs
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The USCIS disagreed with the Senate's interpretation that the additional Chile / Singapore numbers are or must be available. The USCIS acknowledged that they are supposed to follow a two-step process, as essentially outlined in the letter from the senators. They recognized that, first the annual cap of 65,000 is to be reduced by the Chile / Singapore numbers. (They contend that they do not have to reserve 6,800, but have to reserve some amount, up to 6,800 numbers for Chile / Singapore cases.) The second step is that any unused numbers are to be added back to the general pool at the end of the particular fiscal year. These unused numbers are then to be distributed during the first 45 days of the next fiscal year. Therefore, the USCIS and the Senate are largely in agreement as to the general procedure for using the unused Chile / Singapore H1B numbers.
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USCIS Position
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The USCIS reports that it exceeded the 65,000 H1B cap for FY2005. They state that the 65,000 cap for FY2005 was reached and exceeded, without reserving numbers for Chile / Singapore. They acknowledge that they did not accomplish the first step in the process, which is the set-aside of numbers. Therefore, since they did not reserve the numbers and follow step one, they contend that they cannot fulfill the second step of returning the unused numbers to the H1B pool. There are no set aside, reserved numbers because they already issued more than 65,000 FY2005 H1Bs. They argue that taking the second step and adding in the difference between 6,800 and the number of Chile / Singapore H1Bs issued (which was far below 6,800) would compound the counting problems. Their assertion is that doing so would increase the "overages" of numbers issued. Therefore, USCIS opinion is that it is neither required nor authorized under law to follow the second step of the procedure.
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Conclusion
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The USCIS concluded its response by explaining that they have made and continue to make improvements in their H1B cap management program to ensure that the cap is not exceeded and that the Chile / Singapore numbers are set aside. Based on this, it appears that the Chile / Singapore numbers are not available for FY2005 as many had hoped. The USCIS is working to improve its counting system. Hopefully this will not be a problem in future years.