Where, oh where, are the H-1B numbers?

Readers of this column know that Congress increased the H-1B visa cap by 20,000 visas for foreign workers who obtained advanced degrees in the U.S. The visas were available as of March 8, 2005 and would have been a boon to employers needing foreign workers in H-1B status, but the numbers have yet to materialize.

The Citizenship and Immigration Service (CIS) informed the general public that not only would it not accept any applications for the H-1B visa until further notice, it would reject such applications—even though they were available starting on March 8, 2005. Since then, rumors have abounded, some even generated by the CIS. The first of these was quite promising. The CIS indicated that it would open the 20,000 visas to all H-1B workers and not just those who obtained an advanced degree in the U.S.

At first blush, while helpful, this seems counterintuitive. Congress explicitly stated the 20,000 visas are to be allocated to advanced degree holders. How can the CIS do otherwise? It can do this because the 20,000 numbers were made available beginning in fiscal year 2005. This means the CIS could, in theory, recapture 20,000 visas that were previously granted to advanced degree holders and release them for all H-1B workers.

Practitioners, foreign workers, and employers waited with baited breath for instructions that the CIS said was imminent. The CIS informed the public it would publish instructions in the Federal Register. Then, a bombshell was dropped. The American Immigration Lawyers Association reported that government sources confirmed that the CIS miscounted its allocation of 2005 H-1B visas by 10,000 more than it should have. The question that immediately came to mind for many was would this 10,000 be deducted from the 20,000 that Congress just granted.

The latest word from the CIS is that its notice on how to apply for the new visas and their application is waiting clearance from the Office of Management and Budget (OMB). The CIS refuses to provide any information on what the notice may state. Meanwhile, the CIS is accepting H-1B petitions now for work to begin on October 1, 2005.

Many foreign workers who are eligible for the October 1, 2005 start date will also qualify for an earlier start date available through the new numbers. But, the CIS’s delay in how it will handle these numbers is penalizing workers eligible for an earlier start date. Congress issued the numbers in December 2004. The CIS had three months within which to identify how it would allocate the numbers. It should have been ready to issue these numbers starting March 8, 2005.

H-1B workers are now caught in a state of confusion. Employers can only apply for H-1B’s with a start date of October 1, 2005, while technically they should have had start dates available as early as March 8, 2005. This constitutes 20,000 members of the workforce that should have been able to start working before October 1, 2005. Employers and workers are also facing the impending exhaustion of the next year’s H-1B numbers.

The 2005 H-1B visa numbers ran out in only six months—one of the fastest exhaustion of numbers in history. This is precisely why Congress allocated an additional 20,000 H-1B visas. If employers wait for the new 20,000 visas, they run the risk that while waiting, visa numbers to start working this October will run out. But applying for the October H-1B visas may mean that they lose out on the additional 20,000 visas for 2005. The CIS has suggested that there might be a way applications for 2006 H-1B visas may also apply for the 2005 visas. Meanwhile, the clock is ticking and the visas for work beginning on or after October of this year are being gobbled up.

Many practitioners are recommending employers apply now for H-1B visas and indicate on their petitions that they would like a start date earlier than October 1, 2005, if available. Two CIS service centers have indicated that they will accept such applications, but there is no guarantee that these types of applications will secure an earlier number.

The CIS had more than an adequate time to set in place the mechanism for implementing the additional H-1B numbers issued by Congress. It is now well over one month since these new visas were available and not one has been issued. At Reeves and Associates we believe employers should be filing their H-1B petitions and indicate a start date earlier than October is preferred. Once the CIS publishes its notice in the Federal Register, one can expect a flood of petitions will be submitted for the new numbers. Employers and foreign workers should remain vigilant and be prepared to quickly move once the CIS posts its instructions.