On December, 2004,
U.S. Citizenship and Immigration Services (USCIS) announced that President Bush
has signed the Omnibus Appropriations Act for FY 2005, which contains provisions
affecting the H-1B and L nonimmigrant visa categories. Both the H-1B and L
programs allow U.S. employers to sponsor temporary foreign workers.
1.
New Fees
Before October 1, 2003,
employers who used the H-1B program were required to pay an additional $1,000
fee imposed by the American Competitiveness and Workforce Improvement Act of
1998 (ACWIA). In part, that $1,000 fee paid for U.S citizens, lawful permanent
residents and other U.S. workers to attend job training and receive low-income
scholarships or grants for mathematics, engineering or science enrichment
courses administered by the National Science Foundation and the Department of
Labor. Those ACWIA fee requirements sunset on October 1, 2003.
The H-1B provisions of the
Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500.
Petitioners who employ no more than 25 full-time equivalent employees, including
any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of
petitions, that were previously exempt from the $1,000 fee, are still exempt
from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any
non-exempt petitions filed with USCIS after December 8, 2004.
In addition, the Act creates a
new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners
seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification
or those petitioners seeking to change a beneficiary’s employer within those
classifications. Other than petitions to amend or extend stay filed by an
existing H-1B or L employer, there are no exemptions from the $500 fee. The new
$500 fee applies to petitions filed with USCIS on or after March 8, 2005.
Each of these fees is in
addition to the base processing fee to file a Petition for a
Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.
2.
H-1B Cap
This Act, and Public Law
108-441 (Dec. 3, 2004), provides new exemptions from the congressionally
mandated annual H-1B cap.
The first 20,000 H-1B
beneficiaries who have earned a master’s degree or higher from a U.S.
institution of higher education are not subject to the annual congressionally
mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is
required to count those cases against the cap for the remainder of the fiscal
year.
For FY 2005, the new provision
will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries
meeting these criteria. Petitions under this provision cannot be filed at this
time, as the provision is not effective until March 8, 2005. USCIS will provide
additional guidance on eligibility and process at a later date.
Public Law 108-441 extended the
“Conrad 30” J-1 program covering certain medical graduates. Nonimmigrants
currently in the United States on a J-1 (exchange) visa who receive a waiver of
the two-year residency requirement if requested by either a federal or state
agency are now exempt from the
H-1B cap. Qualifying employers
of these beneficiaries may submit H-1B petitions, notwithstanding the fact that
the H-1B cap was already met for FY 2005, after December 8, 2004.
Petitioners must separately
evaluate whether an H-1B petitioner is exempt from certain fees and whether the
petition is exempt from the H-1B cap, because the rules applicable to each type
of exemption are not the same. For example, a petition by an otherwise
non-exempt employer to extend the H-1B stay of a beneficiary for the first time
would be exempt from the H-1B cap, but not from either the $1,500 or $750 fee.
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