USCIS Service Center Operations on H1Bs under FY2005 / 2006 Quotas
Posted May 20, 2005
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The U.S. Citizenship and Immigration Service (USCIS) Center Operations has provided additional insight into some procedural details. In addressing representatives of the American Immigration Lawyers Association (AILA) on May 9, 2005, USCIS mainly focused on H1B issues, though they did confirm that they have sent out nearly all of the delayed approval notices to attorneys for 27,000 I-485 cases that were not sent when the cases were initially approved. This instance was reported in our May 13, 2005 MurthyBulletin article, VSC Issues Missing Approval Notices, available on MurthyDotCom.
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H1B ISSUES
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Upgrading a FY2006 H1B Approval for CP to a FY2005 COS
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It is possible to change a case from consular processing to change of status in some situations where an upgrade is requested. Where an H1B case was approved for consular processing (CP) with a Fiscal Year (FY) 2006 start date, because there was a “gap” in status between, for example, the person’s F-1 status and the start of FY2006 on October 1, 2005, the employer can now request the change of status with the FY2005 upgrade for the earlier start date. Put more simply, if the earlier start date in FY2005 now makes the individual eligible for a change in status, the change can be requested even if it was not requested in the initial filing. In order to qualify, one must be in status as of the requested FY2005 start date and must qualify otherwise for the upgrade by possessing a U.S. master's degree or higher level of education. The USCIS does not require the filing of a Motion to Reopen to seek this benefit. Rather, the upgrade request should include proof that one will be in status on the start date requested in FY2005. So there is a possible double benefit with both the FY2005 start date and a change of status for those who succeed in making the FY2005 quota.
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Attorneys May Submit Upgrade Requests
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The USCIS has confirmed that attorneys may submit upgrade requests for their clients without signed documents from the employer. This would save time in many cases, since obtaining the necessary signatures or authorizations from employers or their representatives who are often traveling or otherwise consumed with the business. This change could help in filing the upgrade request at the earliest opportunity (which was May 11, 2005, to be received by the Vermont Service Center (VSC) on the earliest date to file the FY2005 H1B cases, May 12, 2005).
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Status Gap between End of Studies and Start of the H1B
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The USCIS has indicated that they have not reached a final decision regarding the handling of gaps in status for persons with F-1 and J-1 status that will end prior to the earliest possible start date of the FY 2006 H1B petitions on October 1, 2005. The USCIS mentioned that it is consulting with the U.S. Immigrations and Customs Enforcement (ICE) on this issue since ICE manages SEVIS. There is no definite timeline for any official statement on this matter. Last year the USCIS did not provide the needed "cap-gap" relief until August 8, 2004. This relief has been issued each year when the H1B quota has been exhausted and there has been a cap-gap problem, but it has been a year-to-year, discretionary decision by the Legacy INS and now the USCIS. The USCIS has repeatedly confirmed that there is no guarantee that it will continue to take the same position as in the past and grant the needed relief by approving the COS from F-1 to H1B even with a gap in status, since the goal is to ensure that students do not remain in the U.S. when they are not maintaining their studies. This has previously resulted in a great deal of uncertainty for all parties concerned. The safer approach, therefore, is to make other arrangements, like traveling abroad to apply for the H1B visa stamp at the U.S. consulate, to avoid the risk of a denial of the COS in such situations.
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