New petitions to be accepted by next week

After a delay of nearly two months, USCIS has issued regulatory guidance on the  20,000 cap-exempt H-1B numbers to open up for the current fiscal year, FY2005.  These 20,000 visa numbers are the much-anticipated benefit of the H-1B Visa Reform Act of 2004, which was meant to make 20,000 new H-1B visas available to qualified beneficiaries on March 8, 2005. 

The regulation makes clear that - contrary to USCIS's earlier March 8, 2005 press release - the 20,000 H-1B numbers for this fiscal year will be restricted to those holding U.S. Master's degrees or higher.  Those who do not hold a U.S. Master's degree or higher will not be eligible for the soon-to-be-released 20,000 H-1B visa numbers.  Of course, those ineligible for the 20,000 FY2005 numbers may continue to file H-1B petitions requesting a start date in FY 2006, which begins October 1, 2005.

The new H-1B filing period will open up five business days after May 5, 2005, the anticipated publication date, which makes Thursday, May 12, 2005 the "opening" day on which new H-1B petitions can be filed against the 20,000 new numbers.  Any petitions requesting a new FY 2005 start date received before the opening day will be rejected and returned, along with all filing fees, to the petitioner or representative.

The new rule provides guidance for three groups of U.S. employers seeking to claim any of the 20,000 H-1B visa numbers:  (1) those who have not yet filed H-1B petitions for qualified workers, (2) those who have already filed their H-1B petitions, requesting a start date beginning in FY 2006, and (3) those who have already received H-1B approval notices for FY 2006.  All H-1B petitions or "upgrade requests" must be filed at a special address within the USCIS Vermont Service Center.  The USCIS will not accept  electronically filed H-1B petitions or requests for conversion. Employers can request premium processing as part of the filing under the 20,000.

As of May 12, 2005 (assuming the regulations are posted on May 5 as planned), USCIS will begin accepting new H-1B petitions at the Vermont Service Center on a "first-in, first out" ("FIFO") basis.  Applications may be made on older versions of the I-129 form throughout the month of May.  (Please note that since J&H had proactively redrafted all forms prior to the issuance of the advance notice, our employer clients will, for the most part, be filing on the new forms.)

Premium processing of applications is available to those who submit Form I-907 with their applications, and include the appropriate $1000 filing fee.  However, it is not clear whether premium processing will gain petitioners any advantage toward a claim on the 20,000 H-1B visa numbers.

In deciding who can lay claim to the 20,000 H-1B numbers, the USCIS will "make numbers available to petitions in the order in which the petitions are filed."  USCIS has explicitly rejected issuing numbers in the order in which H-1B petitions are approved, citing a risk of the 20,000 limit being reached while some case remain midway through adjudication.  Thus, the USCIS will assign numbers as cases are filed (not approved), and project an estimate of the number of H-1B petitions necessary to achieve the 20,000 limit.  The agency will then apply a "random selection process" to determine which cases received on the "final receipt date" will be allotted the remaining H-1B numbers. Cases not selected and approved for one of the 20,000 visas under the FY2005 numbers will be adjudicated for FY2006 numbers unless the petition states that the employer is not interested in a 10/1/05 start date. In this latter case, the petition and all filing fees will be returned to the petitioner.

Those who have filed H-1B petitions requesting a start date in FY 2006 may have the option of "upgrading" to an FY 2005 start date, if the beneficiary has a U.S. Master's degree or higher.   Filing a new H-1B petition is not necessary.  Instead, petitioners with applications pending may send a letter to the Vermont Service Center requesting an "upgrade" to a FY 2005 start date, along with (a) evidence of the pending petition, (b) evidence that the beneficiary hold's a U.S. Master's degree or higher, and (c) a copy of the LCA covering the appropriate timeframe within FY 2005.  Such requests may be made via US Express Mail, or private overnight courier services, such as FedEx, UPS, etc.

If a pending H-1B petition had been filed with a Form I-907 premium processing request, a subsequent "upgrade" request will not require another premium processing form or fee.  However, if no premium processing request had been filed with the pending petition, H-1B petitioners requesting an upgrade may submit a premium processing request along with their upgrade request.

If an FY 2005 "upgrade" is requested for a pending H-1B petition originally requesting a FY 2006 start date, but is subsequently deemed unavailable, the USCIS will continue processing the petition for an FY 2006 start date.

For those who have already filed H-1B petitions and received approval, a petitioner may "upgrade" to FY 2005 by sending a letter (no form is necessary) requesting the upgrade, along with a copy of the H-1B approval notice, a copy of the U.S. master's degree, and a copy of the LCA demonstrating a start date within FY 2005.  No Form I-907 premium processing request is necessary or available for the upgrade request, per the new regulations.

USCIS acknowledges that it may receive over 20,000 new H-1B petitions and upgrade requests on the first day.  Further, the USCIS indicated that petitioners on the West Coast may feel disadvantaged in their ability to reliably send overnight mail to the Vermont Service Center.  As a result, the USCIS has stated that it will "randomly apply" all the new 20,000 H-1B numbers toward H-1B petitions and upgrade requests received on the first and second days after the open period (presumably May 12 and 13).  Implicit in the USCIS' comments is the acknowledged possibility that some eligible petitioners may not be able to claim one of the FY 2005 20,000 numbers, even if their H-1B petition is received on the first day of eligibility.  All will depend upon the number of H-1B petitions received (and "upgrade requests" made) on the first day the 20,000 numbers are opened.

Jackson & Hertogs will contact clients who may be impacted by these recent developments, to devise a strategy that works best for them under the circumstances.

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