H-1B still available
H-1B Numbers Still Available This Year
Everyone has heard that we “used up” our H-1B quota last October. Everyone has also heard about the 20,000 additional visas currently available for individuals holding advanced degrees from the United States. However, what many people seem to believe is that, because of these things, anyone who does NOT have an advanced degree has to wait until October to apply for H-1B status. This is not correct. Anyone currently in lawful non-immigrant status can file RIGHT NOW for H-1B status.
Soon after this year’s quota was “used up” USCIS indicated that they would begin accepting applications again starting April 1, 2005. Shortly thereafter, Congress made an additional 20,000 visas available for people with advanced degrees earned in the U.S. Then shortly after that, USCIS announced that they would not accept any H-1B petitions for these additional 20,000 visas until they had issued regulations. Based on the numerous inquiries I’ve had in my office regarding this issue, it seems that many people think that, because USCIS is reluctant to accept H-1B petitions for the 20,000 “advanced degree” visas, USCIS is reluctant to accept ANY H-1B petitions. However, this uncertainty surrounding the 20,000 “advanced degree” visas had no effect on the April 1, 2005 date previously set by USCIS. As of April 1, 2005, USCIS began accepting, and is STILL accepting H-1B petitions – even for individuals without U.S. degrees. So, if you have a job offer, and you believe you might be eligible for H-1B status, you should investigate this possibility RIGHT NOW and not worry about quotas or visa availability.
Most people who enter the U.S. as visitors are given 6 months to remain in the United States. I believe this is precisely why USCIS chose April 1, 2005 as the first date they would accept H-1B visa petitions. Although we ran out of visas for this year last October, we get another 65,000 visa numbers on October 1, 2005. This means that USCIS cannot grant H-1B status with a start date before October 1, 2005. The petition can be filed before that date, and can even be approved before that date, it just can’t grant H-1B status prior to that date. October 1, 2005 is exactly 6 months after April 1, 2005. This means that a person entering the U.S. as a visitor on April 1, 2005, if they are granted a 6 month period of stay, will still be in status on October 1, 2005. Hence, if this person filed a petition requesting H-1B status on April 1, 2005, and the petition was granted with an October 1, 2005 start date, that person would be able to remain continuously in lawful status. They would be in valid B-2 status until October 1, 2005, then commencing October 1, 2005, their status would be changed to H-1B.
So, if you, or someone you know, is currently in the U.S. as a visitor, and your period of stay expires either on or after October 1, 2005, and you have a current offer of employment, you are potentially eligible to file for H-1B status RIGHT NOW. There is no need to wait!
Of course, determining eligibility for H-1B status involves a variety of criteria which should be analyzed only by a qualified immigration attorney with experience in the field. Fortunately, most immigration attorneys charge little or no consultation fees, so the only “cost” of having your case analyzed is the time it takes to talk to an attorney about it. Good Luck!
