On March 4, 2005, the U.S. Citizenship and Immigration Services (USCIS) issued a notice warning that petitions for the new 20,000 cap-exempt H-1B visas under the Omnibus Appropriations Act for FY 2005 ("The Act") will not be accepted until USCIS issues guidance in the Federal Register.  Any petitions submitted prior to USCIS publishing such guidance will be rejected and returned unprocessed.  The applicable provisions of the Act, including the 20,000 exempt H-1Bs, were scheduled to take effect March 8, 2005, 90 days after the enactment of the legislation.  However, the announcement issued on March 4, 2005 states that the provisions will take effect on March 9, 2005, as opposed to March 8, 2005, and that no H-1B petitions will be accepted until USCIS issues guidance in the Federal Register.

Although H-1B petitions can generally be filed six months in advance of the requested start date, previous press releases issued by USCIS established that H-1B petitions under the cap exemption for U.S. advanced degree holders for 2005 were to occur no earlier than March 8, 2005, and would continue until the 20,000 exempt visas were depleted.  It is anticipated that the 20,000 visas will go quickly, given high demand, and it is unknown when guidance for filing under this new program will be published in the Federal Register.  Until such guidance is published, USCIS will accept no petition filings for the 20,000 exempt H-1Bs.  Jackson & Hertogs is monitoring the situation and as updated information is issued by the USCIS, our clients will be notified and immediate action will be taken.

Background

The Omnibus Appropriations Act for FY 2005, signed by President Bush on December 8, 2004, included major changes to the H-1B and L-1 visa categories.  Among the provisions affecting H-1B nonimmigrants, the Act provided a new exemption to the mandated annual H-1B cap of 65,000.  20,000 H-1Bs were to be made available to beneficiaries who have earned a Master's degree or higher from U.S. institutions of higher education.  These 20,000 visas are not subject to the annual cap.  Once the 20,000 slots are filled, any remaining applications would be counted towards the cap of 65,000.  For a full review of the H-1B and L-1 amendments signed into law on December 8, 2004, please see our news release issued on December 9, 2004.

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