20,000 H1B Cap Exemptions : April 20, 2005 Update
Posted Apr 22, 2005
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As our regular readers are aware, there has not yet been a publication by the U.S. Citizenship and Immigration Services (USCIS) in the Federal Register regarding the ability to request one of the 20,000 additional cap exemptions. These exemptions were authorized by Congress for fiscal year (FY) 2005 and supposed to become effective from March 8, 2005. At The Law Office of Sheela Murthy, we receive many questions on this topic each day, from our clients, on the MurthyForum, and through the MurthyChat. Recently, we received some information and guidance that may be useful for the many MurthyDotCom and MurthyBulletin readers who have been following this issue. Those unfamiliar with this very hot topic should review our January 28, 2005 MurthyBulletin article, Twenty Thousand Additional H1Bs : FAQs and Answers, and our March 4, 2005 NewsFlash, USCIS Instructs Not to File New H1B Cases Yet!. Both of these articles are available on MurthyDotCom.
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Some Clarity on What to Do
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The Nebraska Service Center (NSC) has advised that all Service Centers are in receipt of instructions to sort out H1B cases filed for the FY2006 cap on behalf of individuals with advanced degrees. They have indicated that these cases will be given an immediate start date if and when there is an announcement authorizing application of the 20,000 cap exemptions for FY2005. The USCIS indicated earlier that the Vermont Service Center would be processing all of the 20,000 H1B cap-exempt cases. It now appears, however, that other Service Centers will be involved, at least partially, in determining who receives the H1Bs under this 20,000 quota.
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The California Service Center (CSC) has recently confirmed that they will accept FY2006 H1B advanced degree, cap-subject cases with some qualifying language. Until the appearance of the publication in the Federal Register the cases need to reflect a start date of October 1, 2005 to avoid rejection. All the H1B filings, however, can reference language to the effect of "October 1, 2005 or earlier if FY05 H1Bs are available." To qualify for an earlier start date, it would be safer to submit a labor condition application covering the earlier start date. This, however, will likely result in the person not obtaining an H1B for the maximum full three years, even if the USCIS only approves the H1B petition with an October 1, 2005 start date. As recently as Tuesday, April 19, 2005, the USCIS would not confirm whether this language will result in an approval, but mentioned that it should not result in a rejection of the H1B package. The USCIS has not been willing to provide any more information at this time.
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"Conversions" - Process Unknown
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The USCIS has indicated in various meetings with representatives of the American Immigration Lawyers Association (AILA) and during other meetings and conferences, that it would be possible to convert an H1B subject under the FY2006 cap to one seeking approval under the 20,000 H1B cap exemptions for FY2005. Our April 8, 2005 MurthyBulletin article, Updates on 20,000 H1Bs : Potential for Conversion covers this topic. The mechanism for this conversion, however, possibly awaits the issuance of the regulation from USCIS to its Service Centers, though the USCIS may already have issued some sort of guidance to its Service Centers. The CSC has indicated that they are processing the FY2006 H1B cases, but holding the files of the advanced degree cases even following approval. (Typically, they would be sent to off-site storage.) They will be able then to process the conversions to an earlier date once the announcement is made about the 20,000 H1B exemptions for FY2005.
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Strange Approvals - TSC
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AILA has received reports of some H1B cap-subject cases obtaining immediate (FY2005) start dates through the Texas Service Center (TSC) premium processing unit for individuals with advanced degrees. At this time, we have not obtained clarification as to whether these approvals were issued intentionally, based on USCIS Headquarters guidance, or simply in error. However, based upon a slightly later general clarification, it appears that these were in error. The USCIS has stated that cap-subject cases filed with start dates prior to October 1, 2005 will be rejected outright.
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Lack of Clarity Results in Confusion
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Although the law creating the 20,000 cap exemptions was effective on March 8, 2005, there is a lack of clarity on many issues as outlined above. On April 18, 2005, we at The Law Office of Sheela Murthy received information indicating that there have been further delays at the Office of Management and Budget (OMB) where the regulation is pending review. Therefore, the expected publication date remains unknown.
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Who Really Can Take Advantage of this Exemption?
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The law creating the exemptions specifically limited their availability to individuals with U.S. masters' degrees and above, or "advanced degrees." Notwithstanding this limitation, however, the USCIS later announced that, at least for FY2005, they would be made available to all eligible H1B candidates. [See our March 8, 2005 NewsFlash, USCIS Instructs Not to File New H1B Cases Yet!, available on MurthyDotCom.] This matter still remains unclear. Some recent information on procedures designed to identify cases for individuals with U.S. advanced degrees indicates that the regulation may reflect the restriction contained in the law, namely, that only those with U.S. masters' degrees or higher will be able to take advantage of these additional H1B exemptions.
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Wait and See - But File Now!
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At this time, the safest approach for most employers seeking immediate start dates for their employees appears to be to file under the FY2006 cap with an October 1, 2005 start date, but with the notations indicated above regarding issuing it earlier if FY2005 numbers are available. Although the USCIS as recently as April 19, 2005 has not confirmed that this will result in an H1B approval, there does not seem to be any other option for those who wish to take advantage of the possibility of an earlier H1B petition approval. Since the FY2006 cap is limited, waiting too long could allow that cap to be reached, too, so the H1B employer and employee should not wait indefinitely and lose out on both options.
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We will continue to follow this very important matter of interest to many MurthyDotCom and MurthyBulletin readers and hope that it will be resolved soon.
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