The FY 2005 omnibus bill is finally signed by the President. The Omnibus Bill brings new regulations for H-1B and L-1 visas:



H-1B Visas: The Omnibus Bill includes an exemption from the H-1B cap for graduates of U.S. Ph.D. and Masters programs. Foreign degree holders will not qualify. This exemption will allow 20,000 additional employees, who hold a U.S. Ph.D. or Masters degree to apply for H-1B visas.

The bill will take affect immediately. It is expected that the 20,000 cap will be filled up in a very short time. We strongly advise the employers and the employees to file their H-1B petitions as soon as possible.

Unfortunately, the bill also increases the H-1B filing fees (which were terminated on October 1, 2003), now making them permanent. The fee for each H-1B petition is raised from $1,000 to $1,500. The H-1B fee is $750 for employers employing less than 25 employees.

The bill requires employers to pay 100% of the prevailing wage. However, the bill also mandates that where the DOL uses or makes available to employers a governmental survey to determine prevailing wage, such survey shall provide 4 levels of wages commensurate with experience, education, and the level of supervision. If a 2 level wage survey is used, the bill provides a complete formula for calculating the 2 additional intermediate levels.

L-1 Visas: In addition, this measure includes provisions that would prevent L-1B visa holders from being primarily stationed at the worksite of a third party in cases where they would not be controlled and supervised by the petitioning employer, or if their placement at the third party site was part of an arrangement to provide labor for the third party rather than in connection with their duties involving specialized knowledge specific to the petitioning employer. The bill also includes a reinstatement of the 1-year work requirement for L-1 blanket petitions. L-1 amendments will take effect 180 days after the date of enactment.

Fraud Fee for H-1B and L-1 Visas: The bill also adds a new $500 fraud fee. Such fee will be in addition to other fees and will apply to employers filing either an initial petition for an H-1B or L visa or for a change of status or change of employer petition. A $500 fraud fee will also be charged for an alien filing a visa application abroad for an L blanket petition. The fee will be imposed only on principal aliens. There is an ambiguity regarding the effective date of the fraud fee – The amendments in the fraud fee section (Section 426) states that the fraud fee will take affect 90 days after the date of enactment, however the section about the effective dates (Section 430) states that fraud fee takes affect immediately after enactment. We therefore advise that the employers write a separate check of $500 for fraud fee while filing their applications. If the fraud fee section takes affect immediately as provided in Section 430, the employer would have filed the petition properly and the petition will not be returned for lack of fraud fee. If the fraud fee section takes affect after 90 days of enactment, it is expected that the USCIS will return the check without depositing it.



Cigdem A. Acar, Esq.

Acar Law Firm PLLC

New York Head Office
404 Park Ave. South 16th Fl.
New York, NY 10016
Tel: 212.213.6110
Fax: 212.689.3315

Washington, DC Branch Office
1250 24th Street, NW Ste 300
Washington, DC 20037
Tel: 202.467.2789

cigdem@cigdem-acar.com
www.cigdem-acar.com

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