H-1B Visa Numbers Gone

By: Attorneys Robert L. Reeves and Joseph I. Elias

As we have discussed in previous articles, the H-1B visa is subject to a yearly cap. The USCIS reached the cap on August 10, 2005, so no more new petitions will be accepted until April of 2006. Last year, the numbers ran out on October 1, 2004.

Congress provided a bit of relief by setting aside an additional 20,000 H-1B visas for workers who obtained a Master’s degree in the U.S. This, in essence, freed up an additional 20,000 H-1B visas. But even this increase is not enough to sustain the demand. Of the 20,000 Master’s degree or higher H-1B visas, approximately 12,000 remain available.

What does it mean when the H-1B cap is reached?
This means that if an employer is planning to petition a worker for change of status to H-1B (for example, from student status to H-1B), and the petition has not been filed with the USCIS when the cap is met, the change of status cannot be granted.

If I get an October 1, 2005 start date, will I be able to remain in the U.S. legally?

You will only be able to remain in the U.S. if the previous status you were admitted in was valid until October 1, 2005. For example, if you entered as a tourist and your I-94 card states that your status was valid until October 1, 2005 or later, then you would be able to remain in the U.S. You will not be allowed to work until October 1, 2005, and only if you were granted a change of status as well.

For students who are changing status to H-1B, the situation may be different. In the past, the legacy INS passed a regulation allowing students who just graduated to remain in the U.S. and start working on October 1. It is unknown if the USCIS will provide the same benefit this time.

What is the difference between Change of Status and an Approved Petition?
The H-1B is a petition submitted by an employer on behalf of an employee. It basically entails two requests. First, it requests that the USCIS approve its position as an H-1B occupation. Second, if the employee is in the U.S. in another status, it requests that the employee’s status be changed to H-1B.

When the cap is reached, the USCIS can still approve the first portion, but it does not have authority to approve the change of status since there are no H-1B visas available. In this scenario, the USCIS typically issues an approval of the H-1B petition portion with a validity period beginning on October 1, 2006. It does not grant a change of status.

I am in H-1B status now and I have filed an extension or I will be filing an extension. Will I be in danger of missing the cap? Will I go out of status?
No. The H-1B cap only applies to new H-1B petitions. If an employee is already in H-1B status and is being petitioned by the same employer or even a new employer, that employee is not subject to the cap.

I am not in H-1B status now. There is an employer who is willing to sponsor me. What should I do with the cap end approaching?
Because the cap is met, you cannot obtain H-1B status. You should consult a lawyer to discuss alternatives.

I have an H-1B petition processing under the USCIS’s normal processing. It’s not fair that those who pay premium processing can file after me and take my H-1B visa number. Is there anything I can do?

You can always convert a regular processing case to a premium processing case. The CIS has stated in the past that it will halt premium processing cases as the cap nears its end. This is supposed to keep those who file later from taking numbers from those who filed earlier. The CIS has also stated that if it has accepted a petition, it has already allocated a number to that petition. So, there should be no risk in obtaining a number.

I have a master’s degree from the Philippines. Can I get an H-1B through the advanced degree H-1B numbers?
No. The additional 20,000 numbers are only available to those who obtained their advanced degree in the U.S.

I have a master’s degree earned in the U.S. in a different field than my H-1B position. For example, I have a master’s degree from UCLA in history and a B.S. in Computer Engineering from the Philippines, and I will be working as a software engineer. Can I get the advanced degree H-1B?
Yes. The USCIS has stated that the advanced degree to qualify for the separate 20,000 H-1B visa category does not need to be in offered field of employment.

Practitioners across the United States have been closely monitoring the H-1B visa cap numbers. Now that the numbers have expired, alternative visa categories must be explored. For many in the U.S. it may mean returning to their home country to wait for filing an H-1B in April 2006 in order to start work in October 2006.