H-1B PETITION PROCESSING UPDATE

 By:  Roman P. Mosqueda, Esq.

AILA Member

            The United States Citizenship and Immigration Services (USCIS) has just reported that, as of August 4, 2004, it had received 40,000 cap-subject H-1B filings for fiscal year 2005.

            It  has further advised that of those 40,000 filings, 21,000 H-1B petitions have been approved, and the rest are in the pipeline.

            Fiscal year 2005 starts October 1, 2004 and ends September 30, 2005.

            It was previously announced that the USCIS had received enough H-1B petitions as of February 17, 2004 to meet the cap of 65,000 (reduced from 195,000) new workers for fiscal year 2004, which started October 1, 2003 and ends September 30, 2004. 

H-1B Filings For Fiscal Years 2004 And 2005: 

            The USCIS has also reported that it has adjudicated 56,100 approvals toward the 2004 fiscal year cap.  The remaining 2,100 numbers (65,000 minus Chile/Singapore numbers) are expected to be applied to other remaining 2004 cases, such as those caught in IBIS (Interagency Border Inspection System) checks.

            From  February 18, 2004, up to March 31, 2004, the USCIS was not accepting H-1B petitions for first-time employment, except for beneficiary aliens sponsored by institutions of higher education or  related or affiliated nonprofit agencies, or nonprofit research organizations or governmental research organizations.

            Only since April 1, 2004 has the USCIS accepted the filing of H-1B petition for fiscal year 2005, with employment start date of October 1, 2004.

            Not counted towards the H-1B cap are applications for H-1B extension, for change of terms of employment, for change of employers, and for allowance to work concurrently in a second H-1B petition.

            The reported filing of 40,000 H-1B applications as of August 4, 2004, for fiscal year 2005 means that only 25,000 H-1B numbers are left, even though fiscal year 2005 has yet to start on October 1, 2004.

            Thus, the 65,000 H-1B cap for fiscal year 2005 could be reached shortly after the start thereof.  The American Immigration Lawyers Association (AILA) warns its members that: “(w)ithout Congressional relief, your clients will be barred from petitioning for new H-1Bs for most of FY 2005.” Many Filipino professionals would be denied H-1B status.

            Congressional relief means increasing the 65,000 annual H-1B cap starting 2004 to a reasonable number, after its reduction from 195,000. 

Indeed, alien “H-1B professionals contribute to America’s economic security,” according to AILA,  which asks its members to send letters to their Senators and Representatives after Congress returns from recess on September 7, 2004. Filipino-Americans should join this lobby effort. 

Processing Of Applications For Extention (I-539) And H-1B (I-129) By California Service Center: 

            At the AILA’s Conference on Fundamentals of Immigration Law Practice on April 16, 2004, at the Los Angeles Wilshire Grand Hotel, Christina Poulos, Deputy Director of the California Service Center, in Laguna Niguel, California, stated that: 

1.      only aliens with permission to stay up to October 1, 2004 or beyond,  as shown in their Departure Record (Form I-94), can be the beneficiaries of H-1B petitions allowed to be filed beginning April 1, 2004; 

2.   the filing of an application for extension (Form I-539) will be construed as a scheme to beat the October 1, 2004 cut-off period; and 

3.   the H-1B petition for an overstaying alien shall be denied. 

Thus, no distinction between employment and change of status (incorporated in Form I-129) is made by such a policy.  The prior policy of the California Service Center was to grant a meritorious H-1B petition for an overstaying alien, but to deny change of status, and to send the approved I-129 petition to the U.S. Consulate, as requested in Part 4 of Form I-129.

            Indeed, Section 248 of the Immigration and Nationality Act states that: “The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status …”

            And 8 C.F.R. 248.1(b) states in part that: “Timely filing and maintenance of status:  A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed…”

Change In Policy To Prior Policy By California Service Center: 

            It seems  that the aforesaid restrictive policy stated by Deputy Director Christina Poulos of the California Service Center has been changed to the prior policy stated above.

            A client was admitted to the United States on July 20, 2003, and was granted an authorized stay until January 19, 2004.  On January 16, 2004, she filed on her own a request to extend her stay until July 19, 2004.

            By Decision dated June 18, 2004, the Director of the California Service  denied her application for extension of B-2 (tourist status in I-539) under Section 101(a)(15)(B) of the Act, stating that: “USCIS finds that the period of stay authorized at the time of admission appears to have been sufficient for the applicant to accomplish the purpose of the visit as stated at the time of admission.  This request for extension of stay is merely an attempt by the applicant to prolong  (her) stay in the United States.”

            Previously, on May 4, 2004, an H-1B petition (I-129) was filed by an employer for the alien-beneficiary.  By Approval Notice dated August 23, 2004, the California Service Center granted the H-1B petition from 10/01/2004 to 10/01/2007. 

            But by Decision of same date (August 23, 2004), the Director of the California Service Center denied the concurrent request for change of status as a nonimmigrant worker in a Specialty Occupation (H-1B status), principally on the ground that: “(w)hen an applicant is no longer in a valid nonimmigrant status, a request to change status may not be approved,” citing 8 C.F.R. 214.1(C).

            Thus, the above-stated H-1B Approval Notice states that: “Even though the named worker (is) ineligible for a change of status, (she) may depart the United States and apply for the proper visa (H-1B) at a consulate abroad.  Then (she) may apply at a Port of Entry to reenter the U.S. based on that new visa.”

            It should be emphasized that a denial by a U.S. Consul of an application for H-1B visa is not appealable.  And an alien-beneficiary of an approved H-1B petition may be stranded in his/her home country, waiting to reapply for an H-1B visa.