There have been an incredible number of rumors and changes in government policy with respect to H-1B visas over the past week. The changes include the following:

20,000 new H-1B visas. 

As we reported in previous issues of Immigration Spotlight and in e-mail alerts to our clients, the U.S. Citizenship and Immigration Services (USCIS) was required to accept H-1B petitions filed on behalf of individuals with Master's or higher degrees from U.S. universities on March 8, 2005. However, on March 8, 2005, USCIS did not do this, but instead issued a press release stating that it intended to accept petitions for the 20,000 new H-1Bs authorized by the Omnibus Appropriations Act (OAA) during Fiscal Year (FY) 2005 for all qualified H-1B nonimmigrant workers, not just to those individuals holding a master's or higher degree from a U.S. institution of higher learning.

USCIS's decision to open the new 20,000 H-1Bs to all qualified individuals, not just holders of U.S. advanced degrees, is expected to launch a flood of H-1B petitions and has generated a great deal of controversy.  No one really understands the rationale for the USCIS's decision. However, some believe that the USCIS concluded that it had already adjudicated 20,000 H-1B visa petitions on behalf of individuals who possessed Master's or higher degrees from U.S. universities.

USCIS has reiterated that while the effective date of the law which mandated the exemption for 20,000 H-1B visas was March 8, 2005, no petitions for the new 20,000 H-1Bs should be filed until USCIS publishes guidance in the Federal Register.  No further information was released as to when the guidance will be issued.  Any petitions submitted prior to USCIS publishing such guidance will be rejected and returned unprocessed.  Please note that non-cap subject cases (e.g. H-1B extension petitions and/or change of employer filings) may continue to be filed.

When will the USCIS issue filing guidance on the 20,000 H-1B visas? This is a mystery with an answer which Jackson & Hertogs cannot provide without a crystal ball.  There is a rumor that the Federal Register notice will be published in the week of March 21-25, 2005. We will update our website and contact affected clients as soon as  the regulation is promulgated in the Federal Register.

New Form.

One of the key forms to process an H-1B petition is the Form I-129.  There have been rumors circulating for years that the form was going to change. On March 11, 2005, USCIS posted a new version of the form on its website, and announced that the new form was effective immediately and must be used for all filings.  USCIS has not stated why the new form was posted so suddenly and with no advance notice.  One rumor surfaced which claimed that the form was revised so that the USCIS could start collecting additional data beginning on March 21, 2005.  Regardless of the reason for the changes to the form, late on March 15, 2005, the USCIS issued a press release stating that the prior version of Form I-129 may continue to be used for all nonimmigrant visa petitions including H-1B visa petitions until April 30, 2005.  Certain additional information must be added to the existing forms to provide USCIS with necessary data on education and eligibility for filing fees exemptions.  USCIS's decision to accept the prior version of the forms will allow employers to file new H-1B cases without the additional delay of preparing a new set of forms.  Effective May 1, 2005, all H-1B petition filings must be made with the new form I-129.

Fees.  

Effective March 8, 2005, a new $500 fraud detection fee was required for all new H-1B and L-1 visa petitions and for all H-1B transfers to new employers.  The $500 fee is not imposed on H-1B and L-1 extensions for the same employer on behalf of a current employee.  On March 11, 2005, when the USCIS posted a new Form I-129 on its website, it provided new guidance specifying that the fraud fee must be paid with a check separate from the other required filing fees.  This is yet another example of the USCIS not giving the business and legal community any advance notice of major changes. In the past, the USCIS has allowed petitioners to combine separate fees into one check.  Because of this surprise announcement that the fraud fee must be paid with a separate check, we will be asking clients who provided us with one check for all government filing fees to issue new checks that will include a separate check for the fraud fee.

© 1999-2012, Jackson & Hertogs - All rights reserved