This is the latest update on the situation regarding the new 20,000 cap-exempt H-1B visas under the Omnibus Appropriations Act for fiscal 2005 ("The Act") that were required to be available as of March 8, 2005.

On March 4, 2005, the U.S. Citizenship and Immigration Services (USCIS) issued a notice warning that petitions for the new 20,000 H-1B visas under the Act would not be accepted until USCIS issued guidance in the Federal Register. On March 8, 2005, USCIS issued a press release stating that it intended to accept petitions for the 20,000 new H-1Bs for all qualified H-1B nonimmigrant workers, not just to those individuals holding a master's or higher degree from U.S. institutions of higher learning as Congress intended. This announcement caused some controversy in the congressional offices which had sponsored the 20,000 exemptions to be limited to U.S. master's or higher degree holders only.

On March 30, 2005, an official at USCIS informed the American Immigration Lawyers Association (AILA) that the announcement was under review by the Office of Management and Budget (OMB) and USCIS indicated that they had no further information on when OMB would clear the announcement for release. Further, the USCIS official could not say whether USCIS would hold to the March 8, 2005 press release that indicated that the fiscal year 2005 numbers would be open to all eligible H-1Bs, or if the agency would go back to declaring that only individuals holding a master's degree or higher from U.S. universities would be eligible for the numbers.

In the meantime, USCIS will start accepting H-1B filings for fiscal year 2006 on Friday, April 1, 2005. These petitions may have a start date of October 1, 2005.

Jackson & Hertogs is monitoring the situation closely and will notify our clients as soon as we have more information about the new H-1Bs.

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