20,000 Additional H-1B Visas

By: Attorneys Robert L. Reeves and Brian Spalter

On March 8, 2005, the U.S. Citizenship and Immigration Services (USCIS) was scheduled to implement a law allowing them to process an additional 20,000 H-1B visa petitions. These additional 20,000 petitions were to be available to any applicant with a master’s degree or higher from a U.S. institution of higher education. On March 7, 2005, however, USCIS announced in a press release that qualified H-1B applicants should not file their cases until USCIS released further guidance on this issue. The following day (March 8, 2005), USCIS issued a second press release informing the public that it was in the process of preparing regulations to implement the law and again instructed applicants not to file their cases until further guidance was announced.

Upon first glance, these announcements seemed like bad news for U.S. employers and foreign workers. In its second press release, however, USCIS made a significant and unexpected announcement: it stated, “The available petitions for FY 2005 will be applied to all qualified H-1B nonimmigrant aliens, and will not be limited to those individuals holding a master’s degree or higher from a U.S. institution of higher learning.” In other words, it appears that USCIS will make the additional 20,000 visa petitions available to all H-1B applicants and not just those with a master’s degree or higher from a U.S. institution of higher learning.

Why would USCIS do this? Perhaps there were questions as to how the government would allocate the additional 20,000 H-1B visa petitions for FY (Fiscal Year) 2005 given that approximately 65,000 visas have already been granted this year. In other words, because the additional 20,000 petitions were intended only for individuals holding a master’s degree or higher from a U.S. institution, perhaps there was concern as to how USCIS would calculate which of the already approved 65,000 H-1B workers possessed such a degree. Therefore, instead of going back and calculating which of the approved H-1B workers for FY 2005 possess a master’s degree or higher (thus, enabling their visa number to be used by another applicant without such a degree), USCIS perhaps decided to simply apply the entire 20,000 visa petitions to all H-1B applicants.

At this point, there is no way of knowing precisely why USCIS decided to announce this change. Nonetheless, it will undoubtedly provide some much needed relief to a great number of U.S. employers and foreign workers.

In order to fully appreciate the significance of an additional 20,000 visa petitions, it is important to first understand the annual limit on H-1B visas. At present, the law limits the number of available H-1B visas to 65,000 per year. Unfortunately, this numerical limit has posed a considerable problem for U.S. employers because the demand for H-1B employees greatly exceeds the 65,000 limit set by the government. In fact, USCIS announced that on the first day of Fiscal Year 2005, it had received enough H-1B petitions to meet its annual limit of 65,000 new H-1B workers. The additional 20,000 H-1B visa petitions, therefore, represents a recognition by Congress that an annual limit of 65,000 H-1B visas is inadequate and that U.S. employers are in desperate need of the invaluable services provided by H-1B foreign workers.

In conclusion, the availability of an additional 20,000 visa petitions to all H-1B applicants should be a welcome announcement for both U.S. employers and foreign workers. At this point, however, all that can be done is to wait until USCIS issues its final guidance with regards to this change in the law. For the latest updates on this and other developments in immigration law, be on the lookout for further news columns and press releases from Reeves & Associates. Please also feel free to check the immigration law News & Publications section of our website at www.rreeves.com. We recommend that you consult with an experienced and knowledgeable immigration attorney.