20,000 Additional H1B Filings Effective from May 12, 2005
Posted May 03, 2005
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The U.S. Citizenship and Immigration Service (USCIS) indicated on May 2, 2005, that it will publish a rule in the Federal Register on May 5, 2005, regarding the 20,000 additional H1B filings for persons with U.S. masters' degrees or higher. Available for public inspection, the rule indicates that the H1B petitions and conversions will be accepted five (5) business days after the rule is published, which should be May 12, 2005.
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We at The Law Office of Sheela Murthy, P.C. have prepared this detailed summary of the USCIS announcement for the benefit of our MurthyDotCom and MurthyBulletin readers. We trust that this important information will help those who have been anxiously awaiting an update on this matter.
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20,000 H1Bs will be Available Each Fiscal Year
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The USCIS confirmed that the 20,000 H1Bs for persons with a U.S. masters' degree or higher will be available every fiscal year.
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Benefit Limited to Persons with U.S. Master's Degree or Higher
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The USCIS will only accept petitions for the 20,000 H1Bs for beneficiaries who have a U.S. master's degree or higher education.
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20,000 H1Bs to be Filed with Vermont Service Center
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The 20,000 H1B petitions and conversions will only be accepted by the Vermont Service Center (VSC). All other service centers and eFilings will reject petitions for the 20,000 H1Bs. EFilings have been temporarily suspended for all H1B cases and will not be re-implemented until further notice. The H1B petitions must be filed at the special address at the VSC that will accept these H1B petitions and not to the standard Vermont Service Center address used for other H1Bs and other filings.
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Conversion Possible from October 1, 2005 to an Earlier Date
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If an H1B petition for FY2006 is pending or approved, the USCIS will accept a conversion request for the petition so that it is approved with a start date on or before September 30, 2005, if certain conditions are satisfied. To convert, the petitioner must send (a) a letter requesting the conversion; (b) a copy of the approval notice for the FY2006 petition OR a copy of the receipt notice for the FY2006 petition OR a copy of the first two pages of the I-129 petition if the receipt notice has not been received OR a new Form I-129; (c) a certified Labor Condition Application from the U.S. Department of Labor valid for the period of requested employment.
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There is no fee for converting the petition. The petition will be treated as if filed on the day of the conversion request for purposes of the FY2005 request. If there is no FY2005 number available, the original filing date will be used for processing the petition and assigning a number for FY2006 starting on or after October 1, 2005. If the petitioner already requested premium processing, or if the FY2006 petition has been approved, the petitioner does not need to request premium processing or pay a premium processing fee. If premium processing was not originally requested on the pending FY2006 case that the petitioner is converting, and the petitioner now wants premium processing, the petitioner may file the I-907 to request conversion and pay the premium processing fee.
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Cap-Exempt H1Bs Never Counted against 20,000 Quota
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Regarding H1Bs that are already cap-exempt, the USCIS has indicated that they will not be counted against the 20,000 quota, either. Therefore, H1Bs employed at institutions of higher learning or in nonprofit research do not count against either the 65,000 or the 20,000 additional H1B quotas.
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Random Selection of Cases When Cap Neared
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Cases generally will be processed on a First-In / First-Out basis. However, the USCIS will use historical data and statistics to determine when the 20,000 FY2005 cap and all subsequent caps might be reached. For the FY2005 cases, the USCIS will look at the H1B petitions received on the day that they stop taking petitions and on the next day and will randomly select the number of H1B petitions that they will process. To avoid multiple filings, the USCIS has indicated that they will assume any petitions filed for FY2005 will accept a FY2006 (October 1, 2005) start date if the FY2005 numbers are no longer available unless the petitioner clearly indicates otherwise on the petition.
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For future fiscal years, they will use this random selection process on the last day. For example, if the USCIS indicates that they will stop accepting cases for FY2006 on March 1, 2006, and the USCIS only needs to receive 1,000 approvable H1B petitions to reach the cap, they will randomly select the number of petitions they will need to reach the cap on that date, even if they actually receive 10,000 petitions on that day. The rest will be returned to the petitioner, along with a refund of the fees.
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Premium Processing may be Used to Obtain Faster Approval
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As mentioned above, employers may pay the $1000 premium-processing fee for the FY2005 cases to obtain an expedited approval.
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Conclusion
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The USCIS recommends that persons seeking the 20,000 H1Bs file on the initial date that the additional 20,000 H1Bs are available, if possible. They anticipate that the numbers will be used quickly. All conversion requests and new FY2005 petitions should be filed as quickly as possible.
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This detailed summary prepared by The Law Office of Sheela Murthy should help all employers and employees who have been anxiously awaiting details on this hot issue.