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Attorneys fight 'laughable' H1B visa mess

What began as a relief, for many thousands of students and workers seeking H1B visas, has now turned into an agonizing waiting game as the USCIS has delayed, indefinately, the filing date for the new 20,000 additional H1B visas (added to last years quota/cap).

Please note that this does NOT affect the filing for this years 65,000 H1B visa quota which had an opening filing date of April 1st, 2005.

The additional 20,000 visas were part of the Omnibus Appropriations Bill signed by President George W. Bush in December, which included the clause that exempts up to 20,000 people from the H1B cap, who have a master's degree or higher from US schools.

USCIS said it would start accepting up to 20,000 H1B petitions from applicants that have US graduate-level degrees, beginning March 8, 2005.

Only as March 8 approached last month, USCIS announced that the 20,000 additional H1B visas would no longer be limited to applicants with graduate degrees - good news for the immigrant community, except that the USCIS also said applicants should not file petitions for H1B's on March 8, but should instead wait until it publishes a new date for filing - still to be announced.

USCIS also said it "will reject any new H1B petition that is received prior to the filing date set forth."

Well, the immigrant community is still waiting. The USCIS has still not released the new date for filing the additional 20,000 H1B petitions.

Immigration lawyers were optimistic, but dismayed by the recent turn of events.

"It's been a topsy-turvy time," said Susan Cohen, who manages the immigration section of Mintz Levin Cohn Glovsky and Popeo PC.

She said that she had numerous filings ready to go when USCIS announced that the March 8 date would not be honored, and is now stuck holding them and waiting, poised to file and "constantly monitoring the situation."

Timing is even more crucial now that USCIS has opened up the 20,000 H1B's to any applicant.

"The problem is only 20,000 are made available and now anyone can get them," she said. "It seems highly likely that more than 20,000 petitions are going to be filed."

USCIS also muddied the waters by announcing that the old forms for H1B visa petitions would no longer be acceptable. This caused most immigration lawyers to hurry and redo-paperwork on new forms in order to be ready to file one at a moment's notice. However, the USCIS then announced that the old forms would be acceptable until April 30.

The back and forth dance is something that has Cohen, a twenty-year veteran of immigration law, amazed.

"It is unprecedented. I've never seen anything like this," she said. "It has just been one unbelievable announcement after the next."

"It is almost laughable the announcements that are coming from the government," she added.

According to Cohen, it has gotten to the point where some lawyers are talking about filing H1B petitions only to have them rejected and then suing the government because the Omnibus Appropriations Bill put a law in place to accept applications on March 8.

She said she was more interested, however, in getting her clients' visas approved.

Cohen called the whole mess a "disservice" and said it points to one thing above all else.

"Clearly there just aren't enough of these H1B visas to go around," she said. "There is a demand that exceeds the supply."

Roy Watson, managing partner of Watson Law Offices in Boston, agrees that the situation is a perfect illustration that there is a need for more H1B visas.

Watson traveled to Washington last month to try and get a better handle on the situation.

"There is a lot of speculation," he said about his visit. "There is a lot of political stuff going on."

Watson sympathized with the government's move in opening up the 20,000 H1B slots to anyone and going back to break out all the previous H-1Bs granted to those with a graduate degree or higher from U.S. schools and equating that number to the 20,000 that was originally going to be extended. This, he said, keeps visas from getting lost if only 10,000 applicants with graduate degrees applied for the additional 20,000.

"They are maximizing the use of the visas," he said.

Watson said that there was hope in Washington that Congress might intervene to help get a date set, but things are "still up in the air."

"They know they have to get it out and get it out soon," he added.


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