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US - USCIS yet to implement New H-1B Legislation

In a press release dated March 4, 2005, the United States Citizenship and Immigration Services (USCIS) advised US Employers not to file petitions for individuals that would be eligible for the new H-1B exemption created under the Omnibus Appropriations Act for Fiscal Year 2005.

The Omnibus Legislation created an exemption to the H-1B cap for the first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a US institution of higher education. The Omnibus Legislation thus created an additional 20,000 H-1B slots above the already exhausted H-1B total of 65,000 for the Fiscal Year 2005, running October 1, 2004 through September 30, 2005.

The exemption was intended to become effective on March 8, 2005, but because the USCIS has not completed preparations for the guidance of the new exemption, US Employers cannot file petitions for foreign workers that qualify for the exemption.

In the press release, the USCIS advised employers not to file H-1B petitions seeking to employ an H-1B worker that would qualify under the new exemption until after the USCIS publishes guidance in the Federal Register. The USCIS further stated that it would reject any new H-1B petitions that are filed in advance of the effective filing date as set out in the USCIS' forthcoming Federal Register notice.