The USCIS has released long awaited regulations implementing the new 20,000 bonus H-1B quota for graduates of US graduate degree programs. The 65,000 available visas for fiscal year 2005 were used up on October 1, 2004, the very first day of the fiscal year.

This bonus quota was created last year by Congress and will be available this year and in future years in addition to the annual 65,000 H-1B visa quota as well as in addition to H-1Bs that fall outside the cap.

When will the rule become effective?

The regulation will be published on May 5, 2005 and applications will begin to be accepted five BUSINESS days later (i.e. May 12, 2005).

We heard that the regulation would allow any H-1B applicant to file for the bonus quota for 2005? Is that no longer the case?

The USCIS backed off its originally announced plan to allow all H-1B applicants to file for 2005 numbers. The proposal sparked controversy and was likely one of the reasons for the delay in releasing the new rules.

Is this rule final?

This is an interim final rule. It is in force now, but USCIS is accepting comments for sixty days and may make changes based on feedback from the public. Comments will be accepted for the next two months and can be submitted online at www.regulations.gov.

What is the basis of the bonus quota?

On December 8, 2004, President Bush signed a spending bill that included the H-1B Visa Reform Act of 2004. The new law changed the filing fees for H-1B cases and also included a provision creating a new cap exemption for people who have “earned a masters’ or higher degree from a United States institution or higher education (as defined in section 101(a) of the Higher Education Act of 1965 … until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000.”

Congress made the increase effective March 8, 2005, but USCIS did not issue regulations until this month.

Are physicians in graduate medical training in the US covered?

We do not believe these doctors are covered. Residency and fellowship programs are not degree programs and do not appear to be covered by the legislation.

Will USCIS reopen cases previously filed and approved in order to put them under the new quota and free up those numbers for people who don’t qualify for the bonus quota?

No. With the exception of cases filed for FY2006, USCIS notes that Congress did not require this and it is only implementing the new quota on a “going forward” basis only.

The USCIS only recently began collecting information in H-1B applications on the level and source of the degree as of the release of its latest version of the I-129 form released earlier this spring.

How do I file for one of the new H-1Bs for the 2005 fiscal year?

USCIS Vermont Service Center
1A Lemnah Drive
St. Albans, VT 05479-7001

Applications will be accepted on a first-in, first-out basis until it has allocated all 20,000 H-1B exemption numbers authorized. Applications may not be filed in person and must be submitted by US Mail or by a shipping service normally accepted by the VSC.

Can my FY2005 petition be e-Filed?

No. USCIS will not accept FY2005 applications via e-filing.

What about FY2006 cases?

USCIS is temporarily suspending e-filing of FY2006 cases until it has received all petitions that would apply to the bonus FY2005 quota. USCIS will provide a notice on their web site when e-filing will resume for FY2006 numbers.

Can my FY2006 application be “upgraded” to allow for an FY2005 start date?

Yes. Employers who have already filed an FY2006 H-1B petition which USCIS has approved or which is still pending with USCIS will be given the option to upgrade the application and receive a sooner start date if numbers are available.

In order to “upgrade”, the petitioner must submit to USCIS the following:

1. a letter requesting the upgrade

3. a certified LCA for the period of requested employment (or a copy if not already provided with the FY2006 petition)

The upgrade request must be sent to

USCIS Vermont Service Center
1A Lemnah Drive
St. Albans, VT 05479-7001

Will there be a fee to upgrade a previously filed or approved FY2006 petition?

No. And there will be no need to pay an additional premium processing fee if that fee was paid previously.

Won’t people who filed for FY2006 numbers and who seek to upgrade have an unfair advantage over the people who waited to file until this rule came out?

No. Requests to upgrade will be treated as having been filed on the date of receipt at the VSC address and will be subject to the same timing rules as newly filed cases.

How will USCIS track bonus cases for FY2006 and beyond?

Starting with the fiscal year that begins in October, USCIS will accept and work cases on a first-in, first-out basis and will track those petitions that qualify for the bonus quota.

Petitions eligible for exemptions based on being a university or qualifying non-profit will be first pulled out and not counted against the 65,000 cap. Cases only qualifying for the bonus quota and not one of the regular exemptions will then be subtracted from the 20,000 bonus quota. After those numbers are used, any H-1B granted for an H-1B applicant with a master’s degree or higher from a US institution will be counted against the 65,000 regular cap.

I read that USCIS issued 10,000 too many H-1B visas last year. What is being done to prevent that from happening again?

USCIS says it is implementing new technology and enhancing its system capability to allow the agency to monitor H-1B petition receipts on a daily basis. It still must forecast when the H-1B cap will be reached based on the number of petitions already approved, denied and still pending, the period of time that unadjudicated petitions have been pending, and the education level of the petitions that are pending. The USCIS admits that this is an inexact science, but that they must still forecast using those factors. The USCIS will count applications on a daily basis and will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account the factors noted above. Once the USCIS determines that it has received enough petitions to exhaust the 65,000 quota it will announce this and stop accepting applications received after that day. If the cap is reached on the first day filings can be made, USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day.

Which form do I use to file?

Employers may use the Form I-129 issued on March 18, 2005 which incorporates the new Form I-129W, H-1B Data Collection and Filing Fee Exemption as well as the H and H-1B Supplements. The new form MUST be used after May 30, 2005. The older forms can still be used over the next few weeks, but must be annotated according to instructions issued by USCIS. We recommend using the new form to avoid confusion.

Will Premium Processing be available?

Yes. Cases for both FY2005 and FY2006 may be filed using premium processing.

What if I file for an FY2005 start date and too many applications are received?