H1-B Update

“A USCIS official advises that it does not yet know when the announcement about acceptance of H-1B petitions for fiscal 2005 will be published. The announcement, which will be in the form of a rulemaking in the Federal Register, is currently awaiting OMB clearance.

The official was not able to say whether USCIS will hold to the March 8, 2005, press release that indicated that the fiscal 2005 numbers would be open to all eligible H-1Bs, or if the agency will go back to declaring that only individuals holding a master’s or higher from a U.S. university will be eligible for the numbers. In the meantime, USCIS will start accepting H-1B filings for fiscal 2006 on Friday, April 1, 2005. (There had been a rumor that USCIS would delay acceptance of these applications, but that rumor is not true.)

The question that arises is what to do with those who would wish to take advantage of a fiscal 2005 number if possible, but also wish to file as soon as possible for a fiscal 2006 number. USCIS was unable to address this, other than to say that “no one will be advantaged or disadvantaged for a fiscal 2005 number because they filed for a 2006 number”. It was indicated that the Federal Register notice would address this situation, but USCIS is unable to disclose the content until it is cleared by OMB. USCIS is aware of the concern about the expense and other issues involved if one would have to double-file for fiscal 2006 and 2005 numbers.”

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SEVIS Tracking Program Not Responsible for Drop in Foreign Graduate Student Applications

According to a congressional report by the Government Accountability Office (concluded last Thursday), the SEVIS program that tracks foreign students in the United States is not responsible for a drop in visa applications from prospective international students. Instead, educators have stated that other factors, such as long application processes and competition from other countries, are the reasons for this dramatic drop in interest in further education in the U.S.

According to data, international graduate school applications fell 32 percent last year; first-time foreign enrollees dropped 6 percent. These numbers have declined for three straight years (there was growth in applications the decade prior to 9.11).

“We have the best higher education system in the world, due in part to bringing the best and brightest of other countries here to exchange ideas with our students,” said Rep. Howard P. McKeon, (R-CA), chair of the House Education subcommittee hearing that examined the SEVIS tracking system. “We want to preserve this flow of information and culture while maintaining adequate safeguards to report and monitor these students.”

The SEVIS program, which was established in 2003 to monitor international students while they are in the U.S., certifies educational facilities to accept foreign students. The number of certified U.S. schools that could accept foreign students drastically dropped from 70,000 to 6,000 schools after the implementation of SEVIS.

USCIS Updates Form I-129

Late last week, the USCIS posted a new Form I-129 to its website. The former form has been removed from the site and replaced by this newer, updated version. Instructions on the form have been revised and include the new fees for Form I-129, along with other changes (additional bases for classification; requests for action). This new form also makes changes regarding H-2A and H-2B classification, and supplements to the classification for the O, P, Q, and R visas.

USCIS TO IMPLEMENT H-1B VISA REFORM ACT OF 2004

U.S. Citizenship and Immigration Services (USCIS) currently is preparing regulations for the implementation of the Omnibus Appropriations Act for Fiscal Year 2005. Pursuant to an exemption established under this Act, USCIS will be able to process additional petitions for H-1B workers for FY 2005. The available petitions for FY 2005 will be applied to all qualified H-1B nonimmigrant aliens, and will not be limited to those individuals holding a master’s degree or higher degree from a U.S. institution of higher learning.

USCIS previously reported that the applicable provisions of the H-1B Visa Reform Act become effective on March 9, 2005. The correct effective date is March 8, 2005. However, USCIS advises employers not to file H-1B petitions seeking approval for workers who may benefit from these provisions until USCIS publishes a rule concerning the Visa Reform Act and related issues. USCIS will reject any new H-1B petition that is received prior to the filing date set forth in the regulations.

Complete information, including the exact date and address for filing, will be published in the Federal Register as soon as possible. However, employers also should be aware that the filing date announced in the regulation may occur shortly after publication of the regulation. Employers should monitor the Federal Register and http://www.uscis.gov and prepare their filings accordingly.

USCIS Advises Employers to Wait to File For New H-1B Exemption

The USCIS Office of Congressional Relations is preparing a notice that would provide information about the new H-1B exemption for individuals with master’s or other higher degrees from U.S. institutions. While this exemption does not go into effect until March 9, 2005, USCIS has advised employers not to file H-1B petitions to employ individuals under this exemption until a USCIS guidance has been published in the Federal Register. USCIS will reject any such application filed before the guidance is published.

New Fees for H-1B and L-1 Visa Candidates

The Department of Homeland Security is raising the fees for applications for H-1B and L-1 visas. As of March 8, 2005, the fees to apply for these visas will have to pay an additional $500. These fees will be applicable to initial applications for these work visas, and for employees changing jobs within these categories. This amount will be added to the basic filing fee of $185 for H-1B and L-1 visas (and, if applicable, the premium processing fee of $1,000).

It should be noted that this fee will not apply to spouses and children applying for the L-2 visa. In addition, we are still unsure whether this fee will apply to the 20,000 visas provided in the new H-1B exempt category for students with master’s or higher degrees from a U.S. institution, which also goes into effect March 8.