News March 8, 2005

20,000 New Exemptions to H-1B Cap Not Limited to Beneficiaries with U.S. Masters Degrees After All

The H-1B Visa Reform Act and Public Law 108-441, which was signed into law on December 8, 2004, provided new exemptions from the congressionally mandated annual H-1B cap. The first 20,000 H-1B beneficiaries with a Master's degree or higher from a U.S. institution of higher education were not to be subject to the annual cap of 65,000 visas. The cap provisions of the Visa Reform Act became effective on March 8, 2005.

On March 7, 2005 the USCIS issued a notice advising that petitions for U.S. advanced degree graduates approvable under the H-1B Visa Reform Act of 2004 should not be filed until guidance is published in the Federal Register. In a March 8 press release, the USCIS announced that it is preparing regulations for implementation of the Act. The USCIS advises that the 20,000 additional H-1B visa numbers will be applied to any qualified nonimmigrant aliens, and will not be limited to those individuals holding a Master's degree or higher from a U.S. institution of higher learning. Although USCIS offered no explanation for this surprising development, it is possible that the agency has already granted over 20,000 H-1B petitions filed for holders of US master's degrees this fiscal year, thereby permitting it to grant the new visas to individuals with bachelors degrees or its equivalent.

USCIS advised employers not to file H-1B petitions seeking approval for workers who may benefit from these provisions until the agency 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.


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