The New 20,000 Bonus H-1B Quota - FAQs
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.
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.
will the rule become effective?
regulation will be published on May 5, 2005 and applications will begin to be
accepted five BUSINESS days later (i.e. May 12, 2005).
heard that the regulation would allow any H-1B applicant to file for the bonus
quota for 2005? Is that no longer the case?
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.
this rule final?
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.
is the basis of the bonus quota?
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.”
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?
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.
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
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”
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.
do I file for one of the new H-1Bs for the 2005 fiscal year?
seeking H-1B workers for FY2005 will file an H-1B petition at a single
Service Center – the Vermont Service Center. The application should be sent to
Vermont Service Center
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.
my FY2005 petition be e-Filed?
USCIS will not accept FY2005 applications via e-filing.
about FY2006 cases?
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.
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.
order to “upgrade”, the petitioner must submit to USCIS the following:
letter requesting the upgrade
either (a) a copy of the approval notice for the FY2006 petition or (b) a copy
of the receipt notice for the FY2006 petition or (c) a copy of the first two
pages of the related Form I-129 if a receipt notice has not yet been received,
or (d) a new Form
certified LCA for the period of requested employment (or a copy if not already
provided with the FY2006 petition)
upgrade request must be sent to
Vermont Service Center
there be a fee to upgrade a previously filed or approved FY2006 petition?
And there will be no need to pay an additional premium processing fee if that
fee was paid previously.
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?
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
will USCIS track bonus cases for FY2006 and beyond?
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
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.
read that USCIS issued 10,000 too many H-1B visas last year. What is being done
to prevent that from happening again?
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.
form do I use to file?
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
Premium Processing be available?
Cases for both FY2005 and FY2006 may be filed using premium processing.
if I file for an FY2005 start date and too many applications are received?
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.