March 16, 2005

Update On the Implementation Of the H-1B Visa Reform Act

As GT reported from the start, the USCIS has indicated that the 20,000 H-1B visa numbers available for Fiscal Year 2005 will be made available to “all qualified H-1B nonimmigrant aliens.” Remember GT has always interpreted the Congressional mandate to include availability for any new H-1B applicant. Specifically, these visa numbers “will not be limited to those individuals holding a master’s degree or higher degree from a U.S. institution of higher learning.” This good news is found in a USCIS press release issued on March 8th.

The bad new is that the USCIS also indicated in its March 8th press release that petitioners should not file any H-1B petitions seeking approval for these visa numbers until a rule is published regarding this and other visa reform issues. The USCIS will reject any new H-1B petition that is received prior to the filing date set forth in such regulations. These regulations have yet to be published, and it is not clear when this will be done.

The USCIS is expected to begin collecting data from each petition on March 21st pursuant to provisions in the Omnibus Appropriations Act; however, it is not known if this date will be tied to the publication of regulations or to the acceptance of new H-1B petitions.

As you may already know, the USCIS has already begun collecting the $500 Fraud Prevention and Detection Fee with each new H-1 and L-1 in addition to other fees.

On the other hand, many are breathing a sigh of relief because the USCIS announced yesterday evening that petitioners seeking one of these 20,000 visa numbers may continue to use the December 10, 2001 edition of the I-129 and February 14, 2002 edition of the I-129W until April 30, 2005. As of May 1, 2005, only the most recent edition of forms I-129 and I-129W will be accepted.

We will provide you with an update on this situation as soon as new information emerges.