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Practice Note
 
Chaos in H-1B Applications

The chaos in H-1B application has broken nerve of a lot of people, including attorneys.  How will the USCIS differentiate cases filed for the 2005 additional quota, and those filed for the regular quota of 2006?  The following release from AILA shows that, even now,  we are still held refuge by the government for failing to promulgating the regulations, and the answer we don't know yet.  Lin & Valdez is keeping a very close eye on the development.  The following is the complete release we received from AILA on March 30, 2005. 

A USCIS official advises that USCIS does not yet know when the announcement about acceptance of H-1B petitions for fiscal 2005 will be published. The announcement, which will be in the form of a rulemaking in the Federal Register, is currently awaiting OMB clearance.

The official was not able to say whether USCIS will hold to the March 8, 2005, press release that indicated that the fiscal 2005 number would be open to all eligible H-1Bs, or if the agency will go back to declaring that only individuals holding a master's degree or higher from a U.S. university will be eligible for the numbers.

In the meantime, USCIS will start accepting H-1B filings for fiscal 2006 on Friday, April 1, 2005. (There had been a rumor that USCIS would delay acceptance of these filings, but that rumor is not true.)

The question that arises is what to do with those who wish to take advantage of a fiscal 2005 number if possible, but also wish to file as soon as possible for a fiscal 2006 number. USCIS was unable to address this, other than to say that "no one will be advantaged or disadvantaged for a fiscal 2005 number because they filed for a 2006 number." It was indicated that the Federal Register notice would address this situation, but USCIS is unable to disclose the content until it is cleared by OMB. USCIS is aware of the concern about the expense and other issues involved if one would have to double-file for fiscal 2006 and 2005 numbers.


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