The new E-3 visa classification is limited to 10,500 Australian nationals annually. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a "specialty occupation". This term is used and defined in the Immigration and Nationality Act in the same context as the H1B visa program, and will be interpreted in accordance with the criteria used for H1Bs. To be eligible, the Australian citizen must possess a bachelor's degree or higher (or its equivalent) AND the specialty occupation must require the theoretical and practical application of a body of specialized knowledge.

The E-3 beneficiary will be able to be accompanied by her or his spouse and child/ren (under 21) when entering the United States. The spouse and child/ren do not need to be Australian nationals. Only the principal foreign national must meet this requirement. In addition, the spouse is eligible to apply for work authorization. This is a significant benefit, not available to many nonimmigrant, dependent spouses. This is an advantage over the H1B, as a dependent H-4 spouse cannot obtain permission to work while in H-4 status. The work performed by the spouse of an E-3 does not have to meet any particular requirements. Additionally, the spouse and child/ren are not counted against the 10,500 annual limit.

E-3 Procedures and Required Documents:

There is no E-3 or H1B-type of petition that needs to be filed with the USCIS for an E-3. The application for the E-3 visa is made at the consulate, similar to the B-1/B-2 or F-1 visa applications that are allowed to be made directly at the consulate. However, the individual should also be prepared to present proof of eligibility for the E-3 category. The U.S. Department of State has issued a list of documents that will be required to establish eligibility for E-3 visa issuance:

*It is necessary to have a U.S. Department of Labor (DOL) certified Labor Condition Application (LCA). The LCA is a form used in connection with H1B cases that reflects the job offer at the appropriate prevailing wage rate. For the time being, the DOL advises that they will accept the Form ETA-9035, used for H1Bs, for the E-3s. This form must be mailed, not approved online, and must have a date after September 2, 2005. The DOL requires that the LCA bear the notation "E-3 -Australia- to be processed" at the top of each page.

*The application must also include proof of academic/other qualifying credentials, such as certified copy of U.S. baccalaureate or higher degree; a certified copy of a foreign equivalent degree, with any necessary translation and evidence of equivalency; or evidence that the applicant possesses education and experience that is equivalent to a U.S. degree.

*There must be proof the individual holds any required license or other professional permission to practice the occupation in the state where s/he intends to work. In some cases, it will be sufficient to show that the applicant will obtain the license within a reasonable time after admission.

*A letter from the employer or other documentation establishing that the applicant will be engaged in qualifying work in a specialty occupation and that the application will be paid the actual or prevailing wage required by INA Section 212(t)(1).

*There must be supporting evidence establishing that the applicant's stay in the U.S. will be temporary.

In conclusion, the ability to pursue an E-3 will be helpful to those Australian nationals and their prospective employers who missed the H1B cap. It will be preferable to the H1B for many, since there is no petition filing requirement with the USCIS prior to applying for the E-3 visa stamp at the consulate. This saves a substantial amount in filing fees. It may also save a great deal of time, and has the added benefit of not being counted against the H1B cap - often met at or before the start of the USCIS fiscal year.

The H-1B visa Reform Act of 2004, which went into effect on May 5, 2005, changed the H-1B filing procedures for fiscal year 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas for foreign workers with a minimum of a master's level degree from a U.S. academic institution, in addition to the Congressionally mandated annual cap of 65,000 H-1B visas.

As more updates become available on this issue, we will continue to post them on this site.

To qualify for a J-1 visa, an individual must demonstrate to the U.S. government that they do not have an intention to abandon their foreign residence and meet one of the aforementioned criteria. Additionally, the individual must prove to the U.S. government that have sufficient funds to maintain themselves while in the U.S. and that they are fluent in the English language. Individuals can apply for a J-1 Visa at the US Embassy or Consulate with jurisdiction over their place of permanent residence. While one may apply at any US consular office abroad, it is advised they apply within jurisdiction. Participants in the J exchange program should present to the consulate a Form IAP-66, prepared by a designated sponsoring organization.

The 27 countries participating in the VWP include: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Any traveler from these 27 countries will need a machine-readable passport on June 26, 2005 to enter the United States.

An example of a machine-readable passport may be found online at the following link.

The Act allows USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately:

1. For FY 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as returning workers as set forth below, seeking work start dates before October 1, 2005.

2. For FY 2005 and 2006: All "returning workers," meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means:

a) In a petition for a work start date before October 1, 2005(FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004.

b) In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005.

c) If a petition was approved only for "extension of stay" in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a "returning worker" in a new petition. Any worker not certified as a "returning worker" will be subject to the numerical limitation for the relevant fiscal year.

Petition forms and processing will follow current rules, with these additional requirements for "returning workers:"

1. The Petition: The petition must include a certification from the petitioner (employer) signed by the same person who signed the Form I-129 stating, "As a supplement to the certification made on the attached Form I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years." The list must set forth the full name of the worker. If the petition seeks change of status of the worker within the United States, it must include evidence of previous H-2B admissions, such as a visa or a copy of I-94 admission document.

2. Multiple Workers: A single petition may benefit more than one worker, including unnamed workers in "special filing situations" for business reasons. However, any returning workers must be listed in a certification as described above. For multiple named workers, including returning workers, "Attachment 1" to Form I-129 must be included and completed.

3. After the Petition: A petition approval notice will list any returning workers, who must be prepared to show to the U.S. consulate (when requesting an H-2B visa) or CBP port inspector (if visa exempt) proof of the worker's previous H-2B admissions, such as a visa or a copy of I-94 admission document. The State Department will confirm prior visas through its electronic system, and that alone may be sufficient, but failure to show these documents may result in denial of visa or admission.

As usual, each petition must include a labor certification from the Department of Labor (DOL). The process for labor certification for H-2B is described on the DOL website at the following link. USCIS will accept a copy of the labor certification in those cases where the original labor certification has previously been accepted by USCIS.

Premium processing requests may be submitted by including a Form I-907 and the additional $1,000 fee.

In addition to the normal filing fee for petitions received by USCIS on or after May 25, 2005, and seeking work start dates beginning on or after October 1, 2005 (FY 2006), each petition must include a new additional fraud prevention and detection fee of $150. This fee is per petition, regardless of the number of workers benefiting from the petition.

NUMERICAL LIMIT CUT-OFFS

When any H-2B numerical limitation has been reached, USCIS will reject any additional H-2B petition filings that are subject to numerical limits (i.e., other than for "returning workers" and for extension of stay, change of employers or terms of employment). For FY 2006 filings, the Act provides that the numerical limit for the first 6 months of the fiscal year shall be no more than 33,000, with the remaining 33,000 H-2B numbers to be allocated on or after April 1, 2006.

The Act has allowed waiver of any requirement to issue regulations in order to implement expeditiously the provisions described above, and USCIS does not plan to supplement this Public Notice, which has been posted on the USCIS website, with any further notice in the Federal Register. USCIS may post other website notices, including to announce when particular numerical limits have been reached or filing procedures for the second half of FY 2006.

NEW SANCTIONS FOR MISREPRESENTATIONS

Employers should also note that the Act contains new sanctions provisions and civil monetary penalties (up to $10,000 per violation) for failure to meet any of the H-2B petition conditions and for willful misrepresentation of a material fact. These new sanctions provisions become effective October 1, 2005.

The New legislation provides for an exemption from the numerical cap for workers who have already been counted toward the H-2B cap during any 1 of the previous 3 fiscal years. Such workers will be considered a "returning workers." A petition for a returning working must include the returning worker's full name and certification to the Department of Homeland Security (DHS) that the person is a returning worker. The H-2B visa or grant of nonimmigrant status for a returning worker will only be approved if Department of State (DOS) confirms that the individual is a returning worker. For workers that are visa exempt or seeking to change to H-2B status, DHS will handle the confirmation.

This exemption takes effect as if enacted on October 1, 2004 and, the exemption expires on October 1, 2006. Thus, fiscal years 2005 and 2006 are covered. The legislation directs DHS to begin accepting and processing H-2B petitions no later than 14 days after the date of enactment (date the bill is signed into law by the President). It also directs DHS to allocate additional H-2B numbers under the FY2005 cap based on statistical estimates and projections of "returning worker" derived from DOS data. This would indicate that additional cap-subject numbers for Fiscal Year 2005 will be freed up.

Fraud Prevention and Detection Fee

The legislation imposes a $150 fraud prevention and detection fee on employers filing a H-2B petition. This fee takes effect 14 days after the date of enactment and applies to filings for a fiscal year after FY2005.

Sanctions

The law also allows the DHS, after notice and an opportunity for a hearing, to fine employers who exhibit a "substantial failure" to meet any conditions of the H-2B petition or otherwise provide such status to the H-2B employee. This fine may also be imposed for a "willful misrepresentation" of a material fact in such H-2B petitions by employers.

The fines imposed may be administrative remedies or other remedies under law, including civil monetary penalties in an amount not to exceed $10,000.00 per violation, as the DHS deems appropriate. In determining the penalty levels, the highest are reserved for willful failures to meet any conditions of the petition that involve harm to U.S. workers. Employers may also be subject to denial of H-2B petitions and immigrant petitions filed for a period of at least one year but not more than five years as an additional penalty.

Allocation of H-2B Visas or H-2B Nonimmigrant Status During a Fiscal Year

The law also reallocates the 66,000 H-2B numerical limits so that no more than 33,000 numbers can be used during the first 6 months of the fiscal year.

Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or business persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States. Section 501 of H.R. 1268 amends INA by adding a new category of E treaty visa. This amendment creates a new INA Section, Section 101(a)(15)(E)(iii), which allows for the admission of an alien who is a national of the Commonwealth of Australia, and who is entering to perform services in a "specialty occupation."

What is a specialty occupation?

The term "specialty occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation in the United States. The definition is the same as the Immigration and Nationality Act definition of an H-1B "specialty occupation."

What is required of petitioning employers?

The petitioning employer will be required to file a Labor Condition Application (LCA) with the Secretary of Labor as required under Section 212(t)(1) of the INA. The process for filing the LCA should be similar to the process currently used with H-1Bs. Employers must also make the same attestations that they make for H-1B petitions including those regarding paying the prevailing and actual wages, not breaking up strikes, maintaining public access files, etc.

Is there a limit on the number of E-3 visas that will be issued?

The number of E-3 visas that will be issued will be limited to 10,500 per fiscal year. The spouse and children of the E-3 are allowed to accompany or follow to join the principal, and such spouses and children will not count against the 10,500 cap.

What are the time limits on E-3s?

The E status is open-ended and may be extended in two-year increments indefinitely

Can spouses of E-3s work?

Unlike H-4s, spouses of E visa holders are entitled to work authorization.

Can I convert from H-1B to E-3 status?

The statute does not bar this and it should be possible to change from H-1B to E-3 status.

When can I file for an E-3?.

In theory, applications can be submitted immediately as implementing regulations are not required. In practice, USCIS may not adjudicate these cases until they have at least established guidelines.

A person might also simply be able to apply for an E-3 at a consulate and bypass USCIS. The applicant would need to present an LCA and the other documents required above, but USCIS should not have to approve it in advance. This would allow E-3 applicants to secure visas within days of applying and be in the US quickly.

However, we have to wait until the USCIS and Department of State issue more guidance on this.

Is the E-3 a dual intent visa?

E-3 visas are not dual intent visas in the sense of H-1B visas and L-1visas. However, they do not have a foreign residence requirement. Applicants need to attest that they intend to depart when their status terminates. A statement is usually enough unless they have clear intentions showing the opposite.

What Steps Need To Be Taken To Upgrade an FY2005 Petition To A FY2006 Petition ?
The USCIS reiterated that if a new LCA with a current validity date is obtained and filed with the USCIS with the request for an upgrade to a FY2005 filing date, the upgrade may be approved. For upgrade requests it is sufficient for the employer or their attorney to submit the H-1B approval notice or a receipt notice along with a letter requesting the upgrade. The employer or their attorney should also include a new approved LCA with a FY2004 start date as mentioned above. It is not necessary for the employer/petitioner to submit a new, original signature on a petition or in a letter directly from the petitioner.

Premium Processing Cases For FY2005 Qualifying Under The Provisions Of The H-1B Visa Reform Act of 2004 Should Be File With The 1A Lemnah Drive Address
The 1A Lemnah Drive address trumps all other addresses, including for all Premium Processing purposes, for new FY2005 20,000 H-1B cases. All Premium Processing cases for the new 20,000 H01Bs must be filed at the Lemnah address. PLEASE NOTE: USCIS will not accept an I-907 Premium Processing request to upgrade an already-approved FY2006 H-1B petition. USCIS expects to adjudicate promptly all requests to upgrade an already approved FY2006 case, thereby moderating any adjudication time differential.

The USCIS has reiterated in the aforementioned regulation that the 20,000 H-1Bs will be utilized only for individuals who possess a US masters degree or higher. This 20,000 H-1B allocation is in addition to the yearly 65,000 cap imposed on H-1B visas and will be available to individuals with U.S. masters degrees or higher every fiscal year.

All petitioners should file eligible petitions with the Vermont Service Center

The USCIS has indicated that the Vermont Service Center will be the only center accepting H-1B applications for the FY2005 20,000 H-1B visa allocation. Petitions filed at any other center will be rejected. The USCIS also stated that it is suspending efilings of H-1B petitions until further notice in order to ensure that it can properly account for the 20,000 visas. Petitions should be filed at the following special address:

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

Petitions pending or approved for FY2006 can be converted

The USCIS has also indicated that it will accept conversion requests from petitioners wishing to convert cases that have been approved or pending for the 2006 fiscal year to a start date on or before September 30, 2005. To convert such cases, the petitioner must send the USCIS the following documentation:
1)a letter requesting the conversion;
2)a copy of the approval notice of the FY2006 petition or a copy of the receipt notice for the FY2006 petition or the first two pages of the I-129 petition if the receipt notice has not been received or a new I-129 form; and
3)a certified Labor Condition Application (LCA) from the US Department of Labor that is valid for the requested period of employment.

The USCIS is not going to charge any fees for converting the petition. If all FY2005 numbers are used up by the time the conversion request is sent in, the original filing date will be utilized an a FY2006 start date will be assigned to the H-1B petition.

Cases processed in a first-in first-out basis

The USCIS indicated that it will process cases in a first in first out basis. The USCIS will utilize statistical data from past years to determine the final date of acceptance for the 20,000 visas. On the last day of filing, the USCIS will randomly select petitions on that date to reach the cap. In the interest of avoiding multiple filings, for this year (FY2005), the USCIS will automatically accept any petitions remaining after the FY2005 quota has been exhausted for a FY2006 (October 1, 2005) start date unless the petitioner clearly indicates on the petition that does not wish to pursue a FY2006 case. For future fiscal years such remaining petitions will be returned to the petitioner, along with a refund of the fees.

The E Treaty Trader and Treaty Investor

U.S. immigration officers often refer to the E status as a favored classification for international entrepreneurs. The treaty trader and treaty investor categories are the most ideally suited nonimmigrant visa category for international entrepreneurs. Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or business persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States.

For entrepreneurs who want to take advantage of the E-2 treaty investor category by investing in a U.S. business venture, the U.S. enterprise must meet three basic criteria to support the admission as an E-2 investor. First, the enterprise must be owned and controlled by nationals of countries that have agreements or treaties of commerce and navigation with the United States. Second, the enterprise must prove that it has the present or future capacity to generate more than enough income to provide a "minimal living" for the treaty investor. Finally, the treaty national(s) must have made a substantial investment in the U.S. business relative to the amount normally needed to buy and successfully operate similar businesses.

The E status has several distinct advantages over other nonimmigrant visa categories. First, the E status is open-ended and may be extended in two-year increments indefinitely. Second, entrepreneurs with established businesses outside the United States may seek the transfer of managers and essential employees to the United States. Third, the spouse of an E-1 treaty trader or E-2 treaty investor may work with the permission of U.S. Citizenship and Immigration Services (USCIS). Finally, an entrepreneur may apply for the E visa at a U.S. consulate without the necessity of prior USCIS approval.

One limitation of the E category is admission on this status is restricted to citizens of countries that hold treaties of commerce and navigation with the United States. There are currently eighty countries that have such treaties and agreements with the United States. Some agreements support admission by both traders and investors while others are limited to only traders or only investors. Moreover, entrepreneur status is tied directly to the business. This could pose a potential problem. A merger, acquisition, sale, or failure of the business may lead to immediate status problems for the entrepreneur, employees in E status, and their families. Therefore, prior to any critical business restructuring is necessary to protect an E nonimmigrant from losing status.

For entrepreneurs who qualify, the E status offers an attractive option. It allows potentially long term stays in the United States, allows for the transfer of existing managers and essential employees, and provides for spousal employment authorization.
The following countries have trade and investment treaties with the United States and citizens of these countries are eligible for both E-1 and E-2 status:
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia, Canada, Chile, Colombia, Costa Rica, Croatia, Estonia, Ethiopia, Finland, France, Germany, Honduras, Iran (with restrictions), Ireland, Italy, Japan , Jordan, South Korea , Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Taiwan, Togo, Turkey, United Kingdom, and Yugoslavia.
The following countries have trade treaties with the United States which allow for conferral of E-1 (treaty-trader status) to the nationals of said countries:
Brunei, Denmark, Greece, and Israel.
The following countries have investment treaties with the United States which allow for conferral of E-2 (treaty-investor status) to the nationals of said country:
Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo, Czech Republic, Ecuador, Egypt, Estonia, Grenada, Georgia, Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovakia, Sri Lanka, Trinidad & Tobago, Tunisia, Ukraine

The H-1B Temporary Professional Worker

For those entrepreneurs who are not nationals of a "treaty" country or whose investment does not meet the substantiality requirements of the E visa, the H-1B visa may be an option. The regulations governing H-1B visas provide that a U.S. employer or agent with an IRS tax identification number that employs at least one worker and has an employee-employer relationship with that worker may petition for an H-1B professional. By limiting petitioners to U.S. employers or agents, the H-1B visa classification prohibits self-sponsorship. Therefore, the entrepreneur would need to set up a U.S. based venture to act as an employer in order to utilize the H-1B visa option.

Once the entrepreneur organizes a U.S. based business venture in order to file an H-1B petition on their behalf, several requirements must be met. Where the petitioning company is new or has few employees, the USCIS will require the entity to provide significant documentation proving the bona fide nature of the petitioner's job offer. The petitioning entity may be requested to submit its organizational documentation, records regarding its financial health, including capitalization, and records that establish compliance with claimed employment practices. Moreover, the petitioner will need to prove to the USCIS that it has sufficient business to ensure that the H-1B worker (beneficiary) will work for the entity in H-1B capacity as noted on the petition. A comprehensive business plan and evidence of capitalization may satisfy the government's concerns with respect to this issue.

The H-1B status presents a viable immigration option for entrepreneurs. First, it is available without restriction as to nationality. Second, unlike the E classification, a merger or acquisition may, but will not necessarily, require a change of status. The entrepreneur may buy or sell his or her business and stay in status so long as the new entity assumes the immigration obligation of the petitioner, and the H-1B status holder continues to render services.

However, the H-1B may present some drawbacks to an entrepreneur. First, admission to the United States as an H-1B visa holder is generally limited to a period of six years unless an immigrant petition or labor certification application is filed on behalf of the entrepreneur prior to the end of the fifth year. Second, the classification is principally limited to workers rendering services in a specialty occupation. This means that the services to be rendered by the entrepreneur must be professional in nature. Third, most entrepreneurs will be subject to the annual 65,000 H-1B visa cap, thereby creating the risk of delayed admission. Finally, spouses of the H-1B entrepreneurs will not be entitled to work in the United States unless they secure an employment authorized status of their own. Despite of these issues, the H-1B visa is a viable immigration option for entrepreneurs who will be rendering services of a professional nature.

The L Intra-company Transferee

For entrepreneurs who own and manage an existing business abroad, the L classification provides an important avenue for making and managing investments in the United States. The L classification allows the foreign corporation to transfer managers, executives, and specialized knowledge employees to its sister corporation(s) in the United States. The L visa classification thereby makes it possible for the transfer of an employee/owner of the foreign business to the United States. In order to qualify for the L classification certain basic requirements must be met. First, the relationship between the U.S. petitioner and entity abroad must be established. Second, the beneficiary of the L-1 visa must have been employed by the entity abroad for one year prior to filing the petition. Third, the beneficiary's role abroad must have been in an executive, managerial, or specialized knowledge capacity. Finally, the U.S. petitioner must prove that it is already or will be conducting business in the United States and abroad through a related qualifying organization.

The L-1 category allows an ownership interest in the petitioning entity by an applicant seeking admission as an L-l visa holder. However, where the beneficiary is an "owner or major stockholder of the company," the petition must include some evidence that the petitioner's need for the beneficiary is temporary and that the beneficiary will be transferred abroad upon completion of his or her temporary services. Once admitted to the United States in L status, the entrepreneur is authorized only to render services to the L petitioner. However, the L visa holder may receive remuneration from the petitioner or a related foreign enterprise. Typically, admission as an L-1A manager or executive is limited to seven years and admission as an L-1B specialized knowledge worker is limited to five years. Similar to spouses of E visa holders, the spouses of L visa holders may obtain employment authorization.

Conclusion

The E visa, H1B and L1 visas all offer entrepreneurs numerous advantages when considering non-immigrant and immigrant opportunities. The benefits and disadvantages of each of these options have been briefly explained, so that an educated decision can be made when determining how to move forward with your immigration matters. To fully understand which option would be most beneficial to you and your business, it is important to speak to an immigration professional that can completely assess your situation and provide legal guidance.

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 the to base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.

H-1B Cap.

New Exemptions from the 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. USCIS will provide additional guidance on eligibility and process at a later date. Once this this guidance is published on the federal register, USCIS will begin accepting these additional 20,000 H-1B applications.

Certain Physicians are exempt from the Cap as well.

Public Law 108-441 extended the "Conrad 30" J-1 program covering certain medical graduates.

Medical graduates 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.

The act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the "blanket L-1" program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS on or after June 6, 2005.

Fraud Prevention and Detection Fee.

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. The new $500 fee is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.