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April 21, 2005
Update On the H-1B Cap Exemption
To date, the U.S. Citizenship and Immigration Services (USCIS) has not
clarified who will qualify for the new 20,000 H-1Bs to be exempted from
the annual cap, or how the exempt petitions will be allocated for FY2005
in accordance with the H-1B Reform Act of 2004.
As GT previously reported, this past March USCIS issued a press release
announcing the possibility that only professionals holding a Master’s or
higher degree from a U.S. institution would qualify for this exemption.
Since their last press release, however, it has become increasingly unclear
as to how the exempt petitions from FY2005 will be adjudicated and how the
calculations for FY2006 will be made. Even more pressing is the lingering
question of who qualifies for the exemption, since the USCIS has not issued
any definite statements.
Thus far, no regulations implementing the new 20,000 H-1B exemption has
been published. The regulations are the mechanism provided for the practical
application and interpretation of the new exemption. We have recently learned
that the regulation has encountered additional delays while awaiting approval
at the Office of Management and Budget (OMB). Upon OMB’s approval, the regulation
must still clear the Department of Homeland Security (DHS) for final signature.
This could also result in additional delays. In light of these continued
setbacks, GT is unable to predict when the numbers for FY2005 will finally
be available and who will qualify for the exemption.
However, USCIS officials have indicated that the rule will have a provision
to convert the FY2006 cases to FY2005. The government FY commences on October
1 and ends on September 30 of each year. Therefore, FY2006 starts October
1, 2005. Thus, the H-1B cap numbers for FY2006 become available on October
1, 2005.
Unfortunately, frustrations for attorneys, employers and foreign nationals
only continue in light of USCIS’ noncommittal and general statements indicating
that no one will be either advantaged or disadvantaged by filing a petition
for FY2006 when they may qualify for FY2005.
In the meantime, GT has also learned that the USCIS Service Centers have
received instructions to separate all of the applications for H-1B professionals
with U.S. advanced degrees filed for the FY2006. Apparently, the USCIS will
give an immediate start date to those such cases requesting and eligible
for a FY2005 start date, as soon as they are authorized to do so.
In light of this most recent development, it may be beneficial to file
petitions subject to the cap now with an addendum to convert to FY2005 if
allowed by the soon to be released H-1B rule. Once the rule is published,
additional amendments and filings will be completed as needed. In practical
terms, this means that H-1B petitions will be approved either with a start
date of:
GT will continue to provide updated information as to the status of these
exempted numbers as new information becomes available.
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