Sindell Law Offices E-Min Newsletter (Vol. 6) - English Article #27

    USCIS has recently provided figures for the H-1B filings currently in the pipeline for fiscal 2005, as well as the numbers adjudicated thus far for fiscal 2004. These numbers, which were posted separately on InfoNet, have created some confusion.


In February 2004, USCIS announced that it was cutting off the ability to file cap-subject H-1Bs for fiscal 2004 because it had enough cases on file to meet the quota for that fiscal year, which ends on September 30, 2004. Since that time, it has continued to adjudicate fiscal year 2004 cases. The 56,100 number posted on August 23, 2004 is what has actually been adjudicated so far that are chargeable to fiscal 2004. USCIS has indicated that there are still other cases in the pipeline chargeable to fiscal 2004.


Because one cannot file an H-1B petition more than 6 months in advance of the work start date, we were not allowed to file fiscal year 2005 cases until April 1, 2004, six months before the start of the 2005 fiscal year on October 1, 2004. Thus, even while it was still adjudicating fiscal 2004 cases, USCIS has been receiving-and adjudicating-fiscal 2005 cases. The figures of 40,000 cases received and 21,000 approved that were posted on August 20, 2004, represent these H-1B filings that will not take effect until after the 2005 fiscal year starts on October 1, 2005


The overall quota for H-1Bs is 65,000 for each of fiscal years 2004 and 2005. However, because the legislation enacting the Chile and Singapore Free Trade Agreements sets aside a total of 6,800 H-1Bs per year for use under those agreements, the quota is effectively decreased to 58,200. Any numbers unused under those FTAs at fiscal year's end are added back into the quota, but can only be used for adjudications during the first 45 days of the new fiscal year. It is generally believed that very few numbers have been used under the FTAs.


Joe Holliday of the USCIS Service Center Operations ("SCOPS") office has advised AILA that USCIS was mistaken in its answer to question number 1 on the July 27, 2004, Service Center Operations Teleconference liaison minutes. SCOPS now advises that a request for an H-1B extension beyond the sixth year, under the 2002 DOJ Authorization legislation that amended AC21, must be filed no less than 365 days after the date that the labor certification application was filed. If it is filed before the 365 days have run, it is subject to denial, even if the extension would not take effect until after the 365 days. Mr. Holliday cites as authority Part A of the April 24, 2003 Yates guidance memo, which states, "If an alien did not meet the [365-day requirement] at the time of filing, and the alien is not otherwise eligible for an extension of H-1B status, then the BCIS will not approve a request for extension of H-1B status."