20,000 ADDITIONAL H-1B VISAS NOW AVAILABLE

By: Attorneys Robert L. Reeves and Elsie Hui Arias

The U.S. Citizenship and Immigration Services (USCIS) has finally released regulations regarding the release of 20,000 additional H-1B visas for fiscal year (FY) 2005 created by the H-1B Visa Reform Act of 2004. These visas will become available beginning May 12, 2005, and will only be allocated to foreign workers with U.S. master’s degrees or higher.

As noted in previous articles in this column, Congress authorizes the USCIS to issue a maximum of 65,000 H-1B visas per fiscal year. The 65,000-cap for FY 2005 was reached on October 1, 2005. However, with the new regulations implementing the H-1B Visa Reform Act, the USCIS will reopen the FY 2005 H-1B filing period on May 12, 2005, and accept new petitions for foreign workers with an advanced degree earned from a U.S. university to fill the additional 20,000 new H-1B visas. H-1B visa are only issued to alien workers employed in a “specialty occupation” or fashion models of distinguished merit and ability. The regulations define “specialty occupation” as an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty as a minimum qualification for entry into the United States. Examples of H-1B occupations include accountant, computer programmer, and engineer, etc.

The new regulations also provide other important information about H-1B visa processing. For FY 2006 and beyond, the first 20,000 H-1B visas issued to alien workers with U.S. master’s degree or higher will be exempt from the 65,000 cap; H-1B visas issued to such individuals subsequent to the first 20,000 will then be counted against the overall 65,000 cap. The regulations also provide the opportunity for employers with a pending or approved H-1B visa petition for FY 2006 for an alien worker with a U.S. master’s degree or higher to “upgrade” the petition for FY 2005 consideration; certain procedures must be followed to make this request.

The USCIS also reiterated the new fees for H-1B visa petitions: $185 base filing fee for the I-129 Application; $750/$1500 fee for the American Competitiveness and Workforce Improvement Act (ACWIA) ($750 for employers with 25 or less employees; $1500 for employers with 26 or more employees); and $500 fee for fraud prevention and detection. Some exemptions exist for these fees, e.g., a nonprofit or educational institution is exempt from paying the ACWIA fee. The optional “premium processing” fee for expedited adjudication for H-1B visa petitions remains at $1000.

Obtaining an H-1B visa from the USCIS has become increasingly more difficult and complex. Employers or individuals seeking assistance with such matters should consult a knowledgeable and experienced immigration attorney.