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INS ISSUES FINAL RULE ON 0 H-1B FEE
The INS has finally released a final rule implementing the American Competitiveness and Workforce Improvement Act of 1998, commonly known as the ACWIA or just the H-1B bill.  The rule in question does not deal with most of the statute.  In fact, it addresses only the additional 0 fee it created.  While the rule does not cover much, it does provide much needed guidance on when the fee must be paid.  We discussed the interim rule, which was released on November 30, 1998, in a prior issue of Siskind’s Immigration Bulletin.  This article is available at http://www.visalaw.com/98dec/15dec98.html. 
The final rule adopts most of the interim rule, but does include some changes that make determining whether an H-1B application must include the 0 fee easier. 
One important change is that the final rule makes it clear that the 0 fee is employer dependent.  Thus, if the alien worked for Company A, which paid the 0 fee, and then wanted to switch employers, in all situations Company B would also have to pay the 0 fee.  
The rule also clarifies the methods of payment the INS will accept.  The interim rule indicated that the Service required the entire fee of 0 to be paid in one check.  The final rule clarifies that the INS will accept two checks, one for 0 (the base filing fee) and one for 0.  The Service must receive both of these checks at the same time.  The check for 0 must come either from the employer or its representative of record.  
The rule provides further definitions of research organizations that are exempt from the 0 fee.  It clarifies that the research organization does not have to be affiliated with an institution of higher learning.  
Perhaps most importantly, the rule provides concrete situations in which the 0 fee is not required.  These are: 
An amended petition that does not request an extension; 
A petition filed solely to correct an INS error; 
A second or subsequent petition, regardless of whether the fee was required in previous filings. 
The rule creates a new requirement that Form I-129W must be filed with all applications for H-1B visas.  If the employer claims to be exempt from the fee, it must submit evidence to that effect, and must also provide a statement detailing why the fee is not required.  The Form I-129W has been revised, and its name has been changed from “Petition for Nonimmigrant Worker, Filing Fee Exemption” to “H-1B Data Collection and Filing Exemption.”