Update on Additional 20,000 H1Bs to Quota
Posted Mar 28, 2005
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On March 28, 2005, the U.S. Citizenship and Immigration Services (USCIS) confirmed a rumor that the USCIS had already issued 10,000 more cap-subject H1B approvals in FY2005 than had been permitted under law. As MurthyDotCom and MurthyBulletin readers know, the annual cap is 65,000 new H1Bs in each fiscal year. The USCIS apparently approved 75,000 H1B cap-subject cases. It is unclear whether the USCIS will now "correct" this error by reducing by 10,000 the H1Bs available under the recent change in the law that is supposed to make 20,000 additional H1Bs available for persons with U.S. masters' degrees or higher. The USCIS as yet has offered no explanation as to how an error of this magnitude could have occurred. However, these are factors one should keep in mind when deciding whether to file an H1B on April 1, 2005 with an October 1, 2005 start date, under the 2006 fiscal year quota or depend upon the availability of one of the 20,000 (or now possibly 10,000) H1B cap exemptions with a start date prior to October 1, 2005.
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The USCIS has not yet issued any regulations or guidance on who will be eligible to apply for the additional 20,000 H1Bs presumably allowed under the December 8, 2004 law. Although the law allowing an additional 20,000 H1Bs states that the visas are to be available only to persons with U.S. masters' degrees or above, the USCIS at one point indicated that they may open them to all persons potentially qualified for H1B status due to the fact that 20,000 H1Bs with masters' degrees or higher had already filed for H1Bs under the 65,000 H1B quota for fiscal year 2005.
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The USCIS was supposed to start accepting H1B petitions for the additional 20,000 new H1Bs from March 8, 2005, the effective date of the provisions of the law that allowed the additional 20,000 new H1Bs for this fiscal year. However, the USCIS has indicated that they will not accept the new H1B petitions until they have issued a notice in the Federal Register.  
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We at The Law Office of Sheela Murthy, P.C. will continue to monitor this important issue and provide regular updates to MurthyDotCom and  MurthyBulletin readers as and when information is released.