Senators Arlen Spencer, Patrick Leahy, John Cornyn, Edward Kennedy, and Saxy Chambliss of the Immigration Subcommittee have sent a letter toHomeland Secretary Michael Chertoff concerning the number of H-1B visas set aside for the 2005 Fiscal Year for nationals of Chile and Singapore. The senators indicated that by statute, any unused Chile/Singapore visas should be returned to the general supply of H-1B visas at the beginning of the next fiscal year.  Section 214(g)(8) of the Immigration and Nationality Act gives instruction on managing these visas.  The senators claimed that DHS should set aside 6,800 H-1B visas for Chile/Singapore from the annual cap, reducing the numerical limitation by that amount.  At the end of the fiscal year, any unused visas should be submitted back to the pool and the Secretary of Homeland Security should adjust the numerical limitation by that amount.  These visas may then be issued within the first 45 days of the next fiscal year to those who had applied for visas within the fiscal year of the adjustment.

DHS will not know until the end of the fiscal year if all of the Chile/Singapore visas have been used, but if any should remain unused then they should be made available to any aliens who applied during FY 2005.  Although DHS exceeded the cap for FY 2005, it would not be correct to consider the not-yet-unused and not-yet-available visas to have been already re-allocated.

In a response to the senators, Pamela J. Turner, Assistant Secretary for Legislative Affairs wrote on behalf of Secretary Chertoff. She stated that US Citizenship and Immigration Service does not agree that the additional H1-B visas from FY 2005 must be made available.

Turner described the process of re-distributing any unused Chile and Singapore H-1B visas.  In the first step of the process, the cap for the year must be reduced by the numerical limitation of visas for Chile/Singapore. The second step involves adding any unused visas back into the pool at the end of the fiscal year, which may then be distributed to the general H-1B applicant pool within the first 45 days of the next fiscal year.

According to DHS, due to the fact that USCIS exceeded the cap of 65,000 for FY 2005, the first step of the process was not met, and consequently, the second step of the distribution of the unused visas cannot be carried out.  Since the 65,000 was not reduced by the 6,800 limit of H-1B visas set for Chile/Singapore, resubmitting those visas to the pool would only increase overages on the cap which is intended for visas to be issued up to, but not exceeding, that number.

Some experts believe the matter will ultimately end up in court.