Gunster – Immigration Alert, March 7, 2005

In a press release dated March 4, 2005, the United States Citizenship and Immigration Services (“CIS”) advised employers notto file H-1B petitions that qualify under the new exemption available to certain individuals who possess a master’s degree froma U.S. institution of higher learning until new guidance is issued.

As we previously reported, in December 2004, President Bush signed the Omnibus Appropriations Act for FY 2005, which includes the H-1B Visa Reform Act of 2004 that made significant changes to the H-1B nonimmigrant category. Among its numerous changes to the H-1B category, this law makes a change to the H-1B cap mandated by Congress, which currently stands at 65,000 for fiscal year 2005. With the signing of the H-1B Visa Reform Act of 2004, foreign nationals who haveearned a Master’s or higher degree from a U.S. institution of higher education can become exempt from the 65,000 limitationon H-1B numbers. However, the Act does limit the number of beneficiaries who can avail themselves of this exemption to 20,000. According to the CIS press release, this provision was to go into effect on March 9, 2005.

On March 4th CIS indicated that it is currently preparing guidance for the implementation of this provision and that employers should not file H-1B petitions seeking to employ an H-1B worker who may benefit from this provision until it publishes guidance in the Federal Register. CIS has indicated that it will reject any new H-1B petition that is filed in advance of the effective filing date as established in the forthcoming Federal Register notice.

We want all clients to be aware that there has been and will continue to be increased scrutiny on all immigration fronts for the foreseeable future. Immigration laws and policies are in flux and practices and procedures that were routine for many years are now changing. Human Resources Directors and Managers needto remain informed, as do foreign employees that the company may be sponsoring. This advisory is not legal advice and does not substitute for legal advice inan individual case. If you have any questions concerning these changes or any other procedures or policies concerning foreign nationals within your company,please contact:

Sarah Lea Tobocman – Chair, Immigration Practice Group
Phone: 305-376-6065 – E-mail:

Armando A. Olmedo – Senior Associate, Immigration Practice Group
Phone: 305-376-6061 – E-mail:

Jennifer H. Estrella – Associate, Immigration Practice Group
Phone: 305-376-6031 – E-mail:


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