4/27/2005

1. Additional 20,000 H1Bs 

The USCIS has not yet issued any regulations or guidance on who will be eligible to apply for the additional 20,000 H1Bs presumably allowed under the December 8, 2004 law. Although the law allowing an additional 20,000 H1Bs states that the visas are to be available only to persons with U.S. masters' degrees or above, the USCIS at one point indicated that they may open them to all persons potentially qualified for H1B status due to the fact that 20,000 H1Bs with masters' degrees or higher had already filed for H1Bs under the 65,000 H1B quota for fiscal year 2005. 

The USCIS was supposed to start accepting H1B petitions for the additional 20,000 new H1Bs from March 8, 2005, the effective date of the provisions of the law that allowed the additional 20,000 new H1Bs for this fiscal year. However, the USCIS has indicated that they will not accept the new H1B petitions until they have issued a notice in the Federal Register. 

On March 28, 2005, the U.S. Citizenship and Immigration Services (USCIS) confirmed a rumor that the USCIS had already issued 10,000 more cap-subject H1B approvals in FY2005 than had been permitted under law. The USCIS as yet has offered no explanation as to how an error of this magnitude could have occurred. However, these are factors one should keep in mind when deciding whether to file an H1B on April 1, 2005 with an October 1, 2005 start date, under the 2006 fiscal year quota or depend upon the availability of one of the 20,000 (or now possibly 10,000) H1B cap exemptions with a start date prior to October 1, 2005.

2. Processing Goals in FY2005

The USCIS intends to reduce I-485 processing times to fifteen months in FY2005. Other goals include reducing I-140 processing times to seven months, I-751 processing times to eleven months, N-400 processing times to ten months, and I-589 asylum applications processing times to fourteen months. For many of the other processing times for the monitored application types, the USCIS already meets its FY2005 goal for processing times.

3. RFEs and Denials

The USCIS reports that, in the third quarter, requests for evidence in I-485 cases were down twenty-two percent from the rate issued in the first two quarters of 2004. I-129 RFEs dropped one percent and I-140 RFEs dropped twelve percent. Denial rates for I-485s dropped two percent, I-140 denial rates and I-129 denial rates stayed the same at twenty-one percent and ten percent respectively.

4. I-130 Preference Cases

I-130s with priority dates not yet available continue to be no longer considered part of the backlog figures, due to USCIS policy not to process such cases until their priority dates are current. Though the priority dates have retrogressed for I-140s in the EB3 category, the USCIS has not indicated whether they continue to consider the I-140s for cases that are not current to be a part of the backlog, but it appears this remains their position, since these cases are still being processed.