Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004, 23775-23783 [05-8992]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Citizenship and Immigration Services

[Federal Register Volume 70, Number 86 (Thursday, May 5, 2005)]
[Rules and Regulations]
[Pages 23775-23783]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8992]



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Federal Register / Vol. 70, No. 86 / Thursday, May 5, 2005 / Rules 
and Regulations

[[Page 23775]]



DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Part 214

[CIS No. 2347-05]
[DHS Docket No. DHS-2005-0014]
RIN 1615-AB32


Allocation of Additional H-1B Visas Created by the H-1B Visa 
Reform Act of 2004

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule implements certain changes made by the 
Omnibus Appropriations Act for Fiscal Year 2005 to the numerical limits 
of the H-1B nonimmigrant visa category and the fees for filing of H-1B 
petitions. This interim rule also notifies the public of the procedures 
U.S. Citizenship and Immigration Services will use to allocate, in 
fiscal year 2005 and in future fiscal years starting with fiscal year 
2006, the additional 20,000 H-1B numbers made available by the 
exemption created pursuant to that Act. This interim rule amends and 
clarifies the process by which U.S. Citizenship and Immigration 
Services, in the future, will allocate all petitions subject to 
numerical limitations under the Immigration and Nationality Act. This 
interim rule also notifies the public of additional fees that must be 
filed with certain H-1B petitions.

DATES: This rule is effective May 5, 2005. Written comments must be 
submitted by July 5, 2005.

ADDRESSES: You may submit comments, identified by DHS Docket No. DHS-
2005-0014, by one of the following methods:
     EPA Federal Partner EDOCKET Web site: https://www.epa.gov/
feddocket. Follow instructions for submitting comments on the Web site.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: The Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. DHS-2005-0014 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 111 Massachusetts Avenue, 
NW., 2nd Floor, Washington, DC 20529. Contact Telephone Number (202) 
272-8377.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. DHS-2005-0014. All comments received will be posted 
without change to https://www.epa.gov/feddocket, including any personal 
information provided. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at https://www.regulations.gov. 
Submitted comments may also be inspected at the Regulatory Management 
Division, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, 
Washington, DC 20529. To make an appointment please contact the 
Regulatory Management Division at (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, Adjudications 
Officer, Business and Trade Services Branch/Program and Regulation 
Development, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, 
Washington, DC 20529, telephone (202) 353-8177.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. Public Participation
II. Background and Statutory Authority
    A. H-1B Nonimmigrant Classification
    B. H-1B Visa Reform Act of 2004
III. Effect of the H-1B Visa Reform Act of 2004 on FY 2005 Filings
IV. General Process for FY 2005 H-1B Filings
V. General Process for FY 2006 and Subsequent Fiscal Year H-1B 
Filings
VI. Allocation of H-1B Numbers in FY 2005, FY 2006 and Subsequent 
Fiscal Years
VII. Special Filing Procedures for Additional FY 2005 H-1B Numbers
    A. Date of Filing
    B. Filing Location and Method of Filing
    C. Required Forms
    D. Availability of Premium Processing Program
    E. Filing Fees
    F. Requested Start Dates
VIII. Special Additional Filing Procedures for FY 2006
    A. Method of Filing
    B. Upgrading FY 2006 Petitions
    C. Required Forms
    D. Availability of Premium Processing Program
    E. Filing Fees
IX. Section-by-Section Analysis
X. Regulatory Requirements
    A. Administrative Procedure Act (Good Cause exception)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 12866 (Regulatory Planning and Review)
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Paperwork Reduction Act

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. U.S. Citizenship and Immigration Services (USCIS) also 
invites comments that relate to the economic or federalism effects that 
might result from this interim rule. Comments that will provide the 
most assistance to USCIS in developing these procedures will reference 
a specific portion of the interim rule, explain the reason for any 
recommended change, and include data, information, or authority that 
support such recommended change. See

[[Page 23776]]

ADDRESSES above for information on how to submit comments.

II. Background and Statutory Authority

A. H-1B Nonimmigrant Classification

    Under Section 101(a)(15)(H) of the Immigration and Nationality Act 
(INA) and 8 CFR 214.2(h)(4), an H-1B nonimmigrant is an alien employed 
in a specialty occupation or a fashion model of distinguished merit and 
ability. A specialty occupation is an occupation that requires 
theoretical and practical application of a body of specialized 
knowledge and attainment of a bachelor's degree or higher degree in the 
specific specialty as a minimum qualification for entry into the United 
States.
    Section 214(g) of the INA provides that the total number of 
nonimmigrant aliens who may be issued H-1B visas, or otherwise granted 
H-1B status, may not exceed 65,000 during any fiscal year. Under the 
INA, the 65,000 cap does not include H-1B nonimmigrant aliens who are 
employed by, or have received offers of employment at: (1) An 
institution of higher education, or a related or affiliated nonprofit 
entity; or (2) a nonprofit research organization or a governmental 
research organization.
    On October 1, 2004, USCIS issued a press release announcing that 
USCIS had received a sufficient number of H-1B petitions to reach the 
statutory cap for fiscal year (FY) 2005, and that beginning October 2, 
2004, USCIS would not accept for adjudication any H-1B petition for new 
employment containing a request for a work start date prior to October 
1, 2005. A Notice to this effect subsequently was published in the 
Federal Register on November 23, 2004 at 69 FR 68154.

B. H-1B Visa Reform Act of 2004

    On December 8, 2004, the President signed the Omnibus 
Appropriations Act (OAA) for Fiscal Year 2005, Public Law 108-447, 118 
Stat. 2809. Among the provisions of OAA is the H-1B Visa Reform Act of 
2004. The H-1B Visa Reform Act of 2004 amends section 214(g)(5) of the 
INA by adding a third exemption, (C), to the H-1B cap:

(5) ``The numerical limitations contained in paragraph (1)(a) shall 
not apply to any nonimmigrant alien issued a visa or otherwise 
provided status under section 1101(a)(15)(H)(i)(b) of this title who 
* * *
* * * * *
    (C) has earned a masters' or higher degree from a United States 
institution of higher education (as defined in section 101(a) of the 
Higher Education Act of 1965 (20 U.S.C. 1001(a)) until the number of 
aliens who are exempted from such numerical limitation during such 
year exceeds 20,000).''

This amendment became effective 90 days after enactment, March 8, 2005. 
Although there is no direct legislative history for this provision, it 
has the purpose of expanding the availability of needed professional 
workers for employers in the United States.
    The H-1B Visa Reform Act of 2004 also imposed two additional fees 
that must be filed with H-1B petitions. First, section 214(c)(9) of the 
INA was amended to reinstitute and modify the additional fees 
previously imposed by the American Competitiveness and Workforce 
Improvement Act of 1998 (ACWIA), Title IV of Div C., Public Law 105-
277, which are used for scholarships for U.S. low income students and 
for job training for U.S. workers. (The ACWIA fees expired effective 
October 1, 2003). The H-1B Visa Reform Act of 2004 raised the ACWIA fee 
to $1,500 or $750, depending on the size of the employer. Therefore, 
effective December 8, 2004, employers with 26 or more U.S. full-time-
equivalent employees, including all affiliated or subsidiary entities, 
who seek to employ an H-1B nonimmigrant must pay $1,500, in addition to 
the base filing fee of $185 for a Form I-129, Petition for Temporary 
Nonimmigrant Worker. For employers with 25 or fewer U.S. full-time-
equivalent employees, including all affiliated or subsidiary entities, 
the fee is $750, in addition to the base filing fee of $185 for a Form 
I-129.
    Second, the H-1B Visa Reform Act of 2004 amended section 214(c) of 
the INA by adding a new subsection (c)(12) which imposes a $500 fraud 
prevention and detection fee on certain employers filing H-1B 
petitions. Effective March 8, 2005, employers seeking an initial grant 
of H-1B nonimmigrant status or authorization for an existing H-1B (or 
L-1 alien seeking to become an H-1B nonimmigrant) to change employers 
must submit the $500 fraud prevention and detection fee. The $500 fee 
does not need to be submitted by: (1) Employers who seek to extend a 
current H-1B alien's status where such an extension does not involve a 
change of employers, (2) employers who are seeking H-1B1, Chile-
Singapore Free Trade Act nonimmigrants, or (3) dependents of H-1B 
principal beneficiaries.
    These fees must be filed to USCIS in addition to the base filing 
fee (currently $185) for the Form I-129, Petition for Temporary 
Nonimmigrant Worker. Payment for the $185 petition filing fee and the 
$1,500 (or $750) additional ACWIA fee may be made in the form of a 
single check or money order for the total amount due or two checks or 
money orders. Those petitioners who must pay the $500 fraud prevention 
and detection fee must pay with a check or money order that is separate 
from the additional ACWIA application fees of $1,500 (or $750) and the 
$185 petition filing fees. Thus, in certain instances petitioners may 
have to, or elect to, file three separate checks or money orders--one 
for the $185 Form I-129 petition fee; one for the $1,500 or $750 
additional ACWIA fee; and one for the $500 fraud prevention and 
detection fee.
    The new ACWIA and Fraud Detection and Prevention fees are 
statutorily-mandated and do not require a separate rulemaking to 
implement the new fee provisions. However, USCIS, in a future 
rulemaking, will codify these new fees on H-1B petitions and the 
associated exemptions in the regulations to provide a place for 
affected petitioners to find all fee-related information in one place. 
USCIS specifically will amend 8 CFR 214.2(h)(19), which currently 
addresses the fees initially required pursuant to ACWIA, to reflect the 
enhanced ACWIA fees of $1,500 (or $750) and to codify the new fraud 
prevention and detection fees ($500) affecting all H and L petitioners.

III. Effect of H-1B Visa Reform Act of 2004 on FY 2005 Filings

    To implement the H-1B Visa Reform Act of 2004, USCIS had to 
consider the plain language of the statute which specifically limited 
the new exemption to aliens who have earned a U.S. master's degree or 
higher. USCIS has determined that it is a reasonable interpretation of 
the H-1B Visa Reform Act of 2004 to make available 20,000 new H-1B 
numbers in FY 2005, limited to H-1B nonimmigrant aliens who possess a 
U.S. earned master's or higher degree.
    USCIS will allocate the 20,000 new H-1B numbers authorized by the 
H-1B Visa Reform Act of 2004 in this manner for the following reasons. 
Congress left to the Secretary of Homeland Security broad discretion, 
through his authority under sections 103 and 214 of the INA, to 
prescribe regulations and procedures for the admission of nonimmigrant 
aliens, such as H-1B nonimmigrants. Thus, USCIS has broad discretion 
and authority to implement the H-1B Visa Reform Act of 2004.
    The H-1B Visa Reform Act of 2004 was enacted after the start of FY 
2005 and after the receipt of all petitions necessary to reach the 
existing 65,000 H-1B cap for FY 2005. The amendment to section 214(g) 
of the INA, authorizing the cap exemption of 20,000 H-1B nonimmigrant 
aliens with U.S. master's or higher degrees, did not become effective 
until March 8, 2005. Congress

[[Page 23777]]

did not specify any procedures for implementation or dictate the manner 
in which USCIS should allocate H-1B numbers made available pursuant to 
the new exemption. Congress specifically did not require USCIS to 
``reopen'' its review of H-1B petitions already received and re-
characterize the petitions that would have qualified for the new 
exemption had it been in effect at the time the petitions were 
received. Thus, in order to give full effect to the newly created 
exemption, it is reasonable to do so going forward only, applying the 
exemption to up to 20,000 petitions seeking work start dates during FY 
2005. It also appears that Congress intended for the fees for 20,000 
new petitions to be generated during FY 2005 to serve the important 
purposes of supporting the development of the U.S. labor market and the 
detection and prevention of immigration fraud.
    USCIS has never previously been required to collect data concerning 
whether beneficiaries of H-1B petitions possess master's or higher 
degrees earned in the United States. While USCIS did collect 
information about the highest level of education of the beneficiary, it 
did not specifically collect information about whether the beneficiary 
had a U.S. masters or higher degree or whether the degree was earned 
from a U.S. institution. Thus, as to FY 2005, USCIS cannot accurately 
count the petitions already filed for FY 2005 on behalf of 
beneficiaries who have earned masters or higher degrees at U.S. 
institutions. USCIS has made amendments to its recordkeeping and data 
collection systems that will allow it, prospectively, to accurately 
capture the data needed to assess the exact number of H-1B nonimmigrant 
aliens who have a U.S. master's or higher degree.
    In light of the above reasons, for FY 2005, USCIS has determined 
that the only appropriate way to implement the H-1B Visa Reform Act of 
2004 is to apply the 20,000 exemptions prospectively.

IV. General Process for FY 2005 H-1B Filings

    USCIS will reopen the FY 2005 H-1B filing period, effective May 12, 
2005, and make available 20,000 new H-1B numbers for FY 2005. These 
additional H-1B numbers will be limited to U.S. employers seeking an H-
1B nonimmigrant alien who has earned a master's or higher degree from a 
U.S. institution of higher education, as the statute provides.
    U.S. employers seeking an H-1B nonimmigrant alien for FY 2005 will 
file H-1B petitions through a special process, submitting the Form I-
129 petition at a single USCIS service center--Vermont Service Center--
at the address noted in section VII, paragraph A below. USCIS will 
accept and adjudicate properly filed H-1B petitions on a first-in, 
first-out basis until USCIS has allocated all 20,000 H-1B exemption 
numbers authorized, as provided in section VI below.
    As noted below in section VII, paragraph B, USCIS will not accept 
FY 2005 petitions via electronic filing (``e-filing''). USCIS is 
precluding e-filing for FY 2005 petitions because of the need to 
quickly and accurately identify those petitions that will be subject to 
the 20,000 numerical limit. Allowing e-filing would complicate this 
effort due to the additional DHS administrative burden associated with 
matching e-filed petitions with separately filed (through paper) signed 
labor condition applications (LCA) and evidence of required degrees 
(which in general cannot be submitted electronically).

V. General Process for FY 2006 and Subsequent Fiscal Year H-1B Filings

    For FY 2006 and future fiscal years, U.S. employers seeking an H-1B 
nonimmigrant alien, regardless of whether the alien has a master's or 
higher degree, will file for an H-1B number through the normal process, 
submitting the Form I-129 petition at the USCIS Service Center with 
jurisdiction over the place of intended employment.
    For FY 2006 only, U.S. employers who already have filed an FY 2006 
H-1B petition which USCIS has approved or which is still pending with 
USCIS, will be given the option to upgrade such petitions and receive 
an FY 2005 H-1B, if any are available, in accordance with the 
procedures noted in section VIII, paragraph B below.
    For FY 2006 and future fiscal years, USCIS will accept and 
adjudicate properly filed H-1B petitions on a first-in, first-out basis 
and will track those H-1B petitions that qualify for the U.S. master's 
or higher degree exemption under the H-1B Visa Reform Act of 2004 as 
cases are received and adjudicated. Petitions that are eligible for the 
first two exemptions, applicable to petitioners who are employed at 
institutions of higher learning, or in nonprofit research, will not 
count against the 65,000 cap or against the numerical limitation on the 
new exemption. Similarly, H-1B nonimmigrant aliens that are exempt 
under the H-1B Visa Reform Act of 2004 will not be counted towards the 
fiscal year numerical limit of 65,000. USCIS will continue to exempt 
such aliens until USCIS has allocated all 20,000 H-1B exemption numbers 
authorized, as provided in section VI below. Thereafter, any H-1B 
petition granted for an H-1B nonimmigrant alien who has earned a U.S. 
master's or higher degree, unless otherwise exempt, will be counted 
against the fiscal year numerical limitations.
    As noted below in section VIII, paragraph A, USCIS is temporarily 
suspending electronic filing (``e-filing'') of FY 2006 petitions until 
USCIS has received all petitions that would apply to the FY 2005 
numerical limits, including any upgraded applications. USCIS is 
temporarily suspending e-filing for FY 2006 petitions because of the 
need not only to quickly and accurately identify those petitions that 
will be subject to the FY 2005 numerical limits, including requests for 
upgrades from FY 2006 filings, but also to determine which petitions 
will apply against the FY 2006 U.S. master's or higher degree 
exemption. USCIS will provide notice, via the USCIS website, indicating 
when e-filing will be resumed for FY 2006.
    In general, USCIS will require use of the Form I-129 (OMB 1615-
0009) in the filing of H-1B petitions; however, for FY 2005 and 2006 
filings, USCIS has made the additional accommodation for petitioners to 
utilize alternate versions of the form as noted in Sections VII and 
VIII below.

VI. Allocation of H-1B Numbers in FY 2005, FY 2006 and Subsequent 
Fiscal Years

    In the past, USCIS has faced two primary challenges in actual cap 
counting: (1) Anticipating when the cap will be hit and (2) monitoring 
of the inflow of H-1B petition filings. To address the second 
challenge, USCIS has implemented new technology and enhanced its 
systems capability to allow USCIS to monitor H-1B petition receipts on 
a daily basis.
    The first challenge however remains: Picking the number of 
petitions necessary for the cap to be reached. USCIS cannot wait until 
the petitions received have been adjudicated to make this decision, 
because during the time the adjudications are being completed and an 
exact count obtained, the cap would be exceeded by these petitions 
already received and unnecessarily processed. Petitioners whose 
petitions were received and initially processed after the point at 
which the cap would be found to have been reached would have gained an 
unrealistic expectation of having a chance at an H-1B number, and 
either such petitioners would lose significant filing fees without

[[Page 23778]]

substantive adjudication or USCIS would expend unnecessary resources on 
initially processing such petitions and fees and then returning those 
petitions and refunding the fees. Therefore, estimating and projecting 
rates of approval of petitions is required. Through experience of 
several years, USCIS has gained some statistical understanding of 
various factors that play into the cap, including 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. USCIS can apply different 
projected rates of approval (including reversal of denials on appeal) 
to groups of cases based on these factors. None of these factors or 
rates can be projected precisely, and therefore determining when the 
cap will be reached unavoidably involves estimation. The specific 
factors and rates may vary from year to year and will be applied in 
USCIS' discretion with assistance of the DHS Office of Statistics. The 
interim final rule acknowledges USCIS' unavoidable use of projection 
and estimation in cap management.
    To ensure the fair and orderly allocation of numbers in a 
particular classification subject to numerical limits, USCIS will 
employ a random selection process. USCIS' random selection process will 
be computer-generated and validated by the Office of Immigration 
Statistics. When calculating the numerical limitations for a given 
fiscal year, USCIS will make numbers available to petitions in the 
order in which the petitions are filed. USCIS will make projections of 
the number of petitions necessary to achieve the numerical limit of 
approvals, taking into account historical data related to approvals, 
denials, revocations, and other relevant factors. USCIS will monitor 
the number of petitions received (including the number of beneficiaries 
when necessary) and will notify the public of the date that USCIS has 
received the necessary number of petitions (the ``final receipt 
date''). The date of publication will not control the final receipt 
date.
    During the random selection process, USCIS will randomly select 
from among the petitions received on the final receipt date the 
remaining number of petitions deemed necessary to generate the 
numerical limit of approvals. Petitions not selected, and petitions 
received after the final receipt date, will be rejected. If the final 
receipt date is the same as the first date on which petitions subject 
to the applicable cap may be filed (i.e., 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.
    DHS seeks comment on the methodology to approve eligible H-1B 
petitions in circumstances where such petitions were received on the 
day the annual cap was forecasted to be reached.

VII. Special Filing Procedures for Additional FY 2005 H-1B Numbers

A. Date of Filing

    U.S. employers seeking one of the new FY 2005 H-1B numbers made 
available pursuant to the H-1B Visa Reform Act of 2004 may file H-1B 
petitions beginning May 12, 2005. Any petition requesting new FY 2005 
H-1B employment received before May 12, 2005 will be rejected and 
returned, along with the associated filing fees, to the petitioner or 
representative.

B. Filing Location and Method of Filing

    Under the authority created by this interim rule, USCIS is hereby 
advising petitioners seeking an FY 2005 H-1B number that they must 
submit the H-1B petition to the following address: USCIS Vermont 
Service Center, 1A Lemnah Drive, St. Albans, VT 05479-7001.
    Only H-1B petitions received at this specific address at the 
Vermont Service Center will be deemed eligible for an FY 2005 number. 
Filings may not be personally delivered and must be submitted by U.S. 
mail, express shipping services, or by other courier companies normally 
servicing the Vermont Service Center. Any petition seeking an FY 2005 
H-1B number filed or received at another USCIS Service Center will be 
rejected and returned, along with the associated filing fees, to the 
petitioner or representative. USCIS will not accept any FY 2005 
petitions by electronic filing (``e-filing'').

C. Required Forms

    U.S. employers seeking one of the new FY 2005 H-1B numbers made 
available pursuant to the H-1B Visa Reform Act of 2004 may file the new 
Form I-129, Petition for Nonimmigrant Worker (edition date 3-17-05, OMB 
1615-0009), which incorporates the Form I-129W, H-1B Data Collection 
and Filing Fee Exemption, as well as the H and H-1B Supplements. 
Petitioners should note that as of May 30, 2005, all H-1B submissions 
must be made on the new Form I-129 (edition date 3-17-05, OMB 1615-
0009).
    U.S. employers may also file the old Form I-129 (edition date 12-
10-01, OMB 1115-0168, OMB 1615-0093) and the old Form I-129W (edition 
date 2-14-02, OMB 1115-0225). U.S. employers filing the old Form I-129 
(edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) must complete the 
data field in Part 5, marked ``Current number of employees''. 
Petitioners filing the old Form I-129W (edition date 2-14-02, OMB 1115-
0225) must complete Part A, section ``Beneficiary's Highest Level of 
Education'', by: (1) Checking the appropriate box indicating Master's, 
Professional or Doctorate degree; (2) clearly annotating next to the 
selection the phrase--``U.S. earned'; and (3) providing the name and 
location of the U.S institution of higher education.
    Petitioners seeking FY 2005 H-1B numbers also may file one of a few 
additional versions of the Form I-129 that were posted on USCIS' Web 
site during March 2005 before the 3-17-05 version was finalized. 
Regardless of which version of the Form I-129, U.S. employers choose to 
file, a certified Labor Condition Application (LCA) from the Department 
of Labor valid for the period of requested employment must be submitted 
with the Form I-129.

D. Availability of Premium Processing Program

    USCIS recognizes that many H-1B petitioners seeking an FY 2005 H-1B 
number desire the beneficiary to begin work as soon as possible. USCIS 
therefore will allow petitioners to file for the additional FY 2005 
numbers using the Premium Processing Program.

E. Filing Fees

    Petitioners are reminded that the Form I-129 must be filed with the 
base filing fee of $185, the ACWIA fees of $1,500 (for employers with 
26 or more U.S. full-time-equivalent employees) or $750 (for employers 
with 25 or less U.S. full-time-equivalent employees, including all 
affiliated or subsidiary entities), the $500 fraud prevention and 
detection fee (as applicable), as well as the Form I-907 and premium 
processing fee of $1,000. Payment for the $185 petition filing fee and 
the $1,500 (or $750) additional ACWIA fee may be made in the form of a 
single check or money order for the total amount due or two checks or 
money orders to the Department of Homeland Security, in accordance with 
the instructions on the revised Form I-129. Those petitioners who must 
pay the $500 fraud prevention and detection fee must pay with a check 
or money order that is separate from the additional ACWIA application 
fees of $1,500 (or $750) and the $185 petition filing fees. Similarly, 
any premium processing fee of $1,000

[[Page 23779]]

must be paid by separate check. Thus, in certain instances petitioners 
may need to file up to four separate checks or money orders: One for 
the $185 Form I-129 petition fee; one for the $1,500 or $750 additional 
ACWIA fee (which may be combined with the $185 fee); one for the $500 
fraud prevention and detection fee; and one for the $1,000 premium 
processing fee (if applicable).

F. Requested Start Dates

    USCIS anticipates that it will receive a large volume of petitions 
from U.S. employers seeking an FY 2005 number for an H-1B nonimmigrant 
who has earned a U.S. master's degree or higher and that there will 
likely be more petitions filed than there are numbers available. USCIS 
anticipates that many U.S. employers will have already filed H-1B 
petitions seeking an FY 2006 number or will be filing an H-1B petition 
seeking an FY 2006 number. USCIS also anticipates that petitioners who 
do not receive an FY 2005 number likely will seek an FY 2006 number or 
be willing to accept an FY 2006 number if available.
    To facilitate processing of FY 2005 numbers, to avoid the filing of 
multiple petitions on behalf of the same alien for the same employment 
starting on different possible dates, and to properly segregate FY 2005 
petitions, USCIS will assume that petitioners who are filing for a FY 
2005 number are willing to receive an FY 2006 number and start date 
(October 1, 2005) if an FY 2005 number is unavailable and if the 
petitioner still seeks an alien for employment in FY 2006. Petitioners 
who seek an FY 2005 number only must, in addition to indicating a start 
date for employment prior to October 1, 2005, clearly annotate the top 
of the first page of the Form I-129 with the phrase ``FY 2005 only.'' 
Such petitions that are found to exceed the numerical limit will be 
returned to the petitioner, and any associated filing fees will be 
returned or refunded.

VIII. Special Additional Filing Procedures for FY 2006

A. Method of Filing

    Until further notice, USCIS has temporarily suspended electronic 
filing (``e-filing'') of FY 2006 H-1B petitions. U.S. employers seeking 
an FY 2006 number, however, may file H-1B petitions for an FY 2006 
number by U.S. mail, express shipping services, or by other courier 
companies normally servicing the USCIS Service Center with jurisdiction 
over the place of intended employment according to the normal 
procedure. Such petitions may not be personally delivered to the 
applicable USCIS Service Center.

B. Upgrading FY 2006 Petitions

    USCIS is aware that some H-1B petitioners who have already filed H-
1B petitions for FY 2006 employment may wish to convert an approved or 
pending petition into an FY 2005 filing to allow the alien beneficiary 
to commence employment at an earlier date. USCIS will permit 
petitioners to ``upgrade'' a pending or approved FY 2006 H-1B petition 
if the beneficiary has a U.S. master's degree or higher degree from a 
U.S. institution and the petition is otherwise approvable. Such a 
petition will be treated as a request for an FY 2005 number and start 
date and, in the event that an FY 2005 number is not available, as an 
alternative request for an FY 2006 number with an October 1, 2005 start 
date for employment.
    In order to upgrade an FY 2006 H-1B petition, the petitioner must 
submit to USCIS: (1) A letter requesting the upgrade; (2) either (a) a 
copy of the approval notice for the FY 2006 petition, (b) a copy of the 
receipt notice for the FY 2006 petition, (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 I-129; and (3) a certified Labor Condition 
Application (LCA) from the Department of Labor valid for the period of 
requested employment (or copy thereof if not already provided with the 
FY 2006 petition).
    Petitioners seeking an upgrade must submit the required 
documentation to the following address: USCIS Vermont Service Center, 
1A Lemnah Drive, St. Albans, VT 05479-7001. There is no fee to upgrade 
a previously filed or approved FY 2006 petition. Upgrade filings may 
not be personally delivered and must be submitted by U.S. mail, express 
shipping services, or by other courier companies normally servicing the 
Vermont Service Center.
    Any request to upgrade a FY 2006 for purposes of a FY 2005 filing 
will be treated as having been filed on the date of receipt at the 
Vermont Service Center address and is subject to the same timing rules 
for full petitions submitted for FY 2005 as set forth in Section VII, 
paragraph A above. In the event that a FY 2005 number is not available 
for an upgrade request, the original petition will be deemed as having 
been filed for an FY 2006 number on the date the petition was initially 
filed at one of the four service centers.

C. Required Forms

    U.S. employers seeking FY 2006 H-1B numbers may file the new Form 
I-129, Petition for Nonimmigrant Worker (edition date 3-17-05, OMB 
1615-0009), which incorporates the Form I-129W, H-1B Data Collection 
and Filing Fee Exemption, as well as the H and H-1B Supplements. 
Petitioners should note that as of May 30, 2005, all H-1B submissions 
must be made on the new Form I-129 (edition date 3-17-05, OMB 1615-
0009).
    U.S. employers may also file the old Form I-129 (edition date 12-
10-01, OMB 1115-0168, OMB 1615-0093) and the old Form I-129W (edition 
date 2-14-02, OMB 1115-0225). U.S. employers filing the old Form I-129 
(edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) must complete the 
data field in Part 5, marked ``Current number of employees''. 
Petitioners filing the old Form I-129W (edition date 2-14-02, OMB 1115-
0225) must complete Part A, section ``Beneficiary's Highest Level of 
Education'', by: (1) Checking the appropriate box indicating Master's, 
Professional or Doctorate degree; (2) clearly annotating next to the 
selection the phrase--``U.S. earned''; and (3) providing the name and 
location of the U.S institution of higher education.
    Petitioners may file also one of a few additional versions of the 
Form I-129 that were posted on USCIS' Web site during March 2005 before 
the 3-17-05 version was finalized. Regardless of which version of the 
Form I-129, U.S. employers chose to file, a certified Labor Condition 
Application (LCA) from the Department of Labor valid for the period of 
requested employment must be submitted with the Form I-129.

D. Availability of Premium Processing Program

    FY 2006 petitions may be filed via the Premium Processing Program 
and should include the required Form I-907, Request for Premium 
Processing, along with the $1,000 premium processing fee.
    U.S. employers who: (1) Have already filed an FY 2006 H-1B petition 
with premium processing, (2) whose FY 2006 H-1B petition is still 
pending adjudication, and (3) who now seek an upgrade for an FY 2005 
number, do not need to submit a new Form I-907 or new premium 
processing fee.
    U.S. employers who: (1) Have already filed an FY 2006 H-1B petition 
without using premium processing, (2) whose FY 2006 H-1B petition is 
still pending adjudication, and (3) who now seek an upgrade for an FY 
2005 number, must include with the upgrade request a Form I-907, 
Request for Premium Processing, along with the premium processing fee.

[[Page 23780]]

    U.S. employers who: (1) Have already filed an FY 2006 H-1B petition 
that has been approved, regardless of whether premium processing was 
requested, and (2) who now seek an upgrade for an FY 2005 number, do 
not need to submit a new Form I-907 or new premium processing fee.

E. Filing Fees

    Petitioners are reminded that the Form I-129 must be filed with the 
base filing fee of $185, the ACWIA fees of $1,500 (for employers with 
26 or more U.S. full-time-equivalent employees) or $750 (for employers 
with 25 or less U.S. full-time-equivalent employees, including all 
affiliated or subsidiary entities), the $500 fraud prevention and 
detection fee (as applicable), as well as the Form I-907 and premium 
processing fee of $1,000, if applicable. Payment for the $185 petition 
filing fee and the $1,500 (or $750) additional ACWIA fee may be made in 
the form of a single check or money order for the total amount due or 
two checks or money orders. Those petitioners who must pay the $500 
fraud prevention and detection fee must pay with a check or money order 
that is separate from the additional ACWIA application fees of $1,500 
(or $750) and the $185 petition filing fees. Similarly, any premium 
processing fee of $1,000 must be paid by separate check. Thus, in 
certain instances petitioners may need to file up to four separate 
checks or money orders: One for the $185 Form I-129 petition fee; one 
for the $1,500 or $750 additional ACWIA fee (which may be combined with 
the $185 fee); one for the $500 fraud prevention and detection fee; and 
one for the $1,000 premium processing fee (if applicable).

IX. Section-by-Section Analysis

    USCIS is revising 8 CFR 214.2(h)(2)(i)(A) to provide that USCIS may 
set alternate filing locations via notice in the Federal Register.
    USCIS is revising 8 CFR 214.2(h)(8)(ii) in its entirety to properly 
reflect that USCIS tracks petitions or applications subject to 
numerical limits, not by individual petition receipt numbers, but by 
monitoring the total number of petitions (including the number of 
beneficiaries when necessary) filed within a given fiscal year. This 
revision applies to all H nonimmigrant classifications subject to 
numerical limits. In calculating when the numerical limits have been or 
will likely be reached, USCIS will make projections of the number of 
petitions necessary to achieve the numerical limit of approvals, taking 
into account historical data related to approvals, denials, 
revocations, and other relevant factors. USCIS will continue to count 
H-1B petitions on a first-in, first-out basis and monitor the number of 
petitions received, approved, and pending adjudication to determine 
when USCIS is likely to reach or exceed the numerical limits in a given 
fiscal year.
    As discussed above in Section VI, USCIS also is amending 8 CFR 
214.2(h)(8)(ii)(B) to authorize random selection of H-1B numbers in FY 
2005, FY 2006 and future fiscal years when USCIS determines that the 
numerical limits in a particular category will be reached.
    USCIS recognizes that, given the period of time that has passed 
since cap-subject H-1B filings last were received, the anticipated high 
demand for immediate validity dates is substantial and may even exceed 
the 20,000 newly available numbers for FY 2005 on the first day. 
Therefore, any petitioner who desires an FY 2005 number must consider 
the importance of having the petition (or ``upgrade'' of an already 
filed FY 2006 petition) delivered on the first day on which filings 
will be accepted. Petitioners likely will send the petition or upgrade 
on the day before that date by overnight delivery to ensure arrival at 
the Vermont Service Center on the first day.
    In order to reduce petitioners' concern that even an overnight 
delivery service from a remote location might not actually deliver the 
package on the first day, USCIS has decided that, in the event that the 
final receipt date is the same as the first date on which petitions may 
be filed (i.e. if the cap is reached on the first day filings can be 
made for FY 2005), USCIS will randomly apply all of the numbers among 
the petitions filed on the final receipt date and the following day. In 
such cases, no advantage will be gained by the particular time of day a 
filing is received. USCIS has concluded that such a commitment best 
ensures general fairness and orderly procedures for allocations of 
petitions subject to numerical limits.

X. Regulatory Requirements

A. Administrative Procedure Act (Good Cause Exception)

    Implementation of this rule without notice and the opportunity for 
public comment is warranted under the ``good cause'' exception found 
under the Administrative Procedure Act (APA) at 5 U.S.C. 553(b). USCIS 
has determined that delaying implementation of this rule to await 
public notice and comment is impracticable and contrary to the public 
interest. The H-1B Visa Reform Act of 2004 was enacted on December 8, 
2004. The provisions related to the H-1B numerical limitations and new 
fraud prevention and detection fees became effective March 8, 2005.
    Immediate implementation of this rule is in the public interest, 
specifically that of U.S. employers, students and workers. While 
processing for the FY 2006 H-1B cap began on April 1, 2005, U.S. 
employers have been unable to hire new H-1B workers since October 1, 
2004. A worker with an FY 2006 cap number cannot begin work until 
October 1, 2005, the date on which FY 2006 begins. In order to provide 
U.S. employers with the ability to address their employment needs as 
soon as possible and to alleviate the burdens imposed on their ability 
to hire H-1B workers since October 1, 2004, USCIS must issue this 
interim rule to implement immediately these provisions and notify the 
public of the process by which the remaining H-1B numbers for FY 2005 
will be made available. This interim rule is necessary to allocate 
fairly and equitably the new FY 2005 H-1B numbers in an expeditious 
manner. In addition, the new fees to be generated by the FY 2005 
filings will be allocated to public purposes of low-income student 
education, job training, and fraud prevention and detection, and 
further delay of the FY 2005 filings would delay the funding of those 
purposes. It is therefore impracticable and contrary to the public 
interest to adopt this rule with the prior notice and comment period 
normally required under 5 U.S.C. 553(b).
    USCIS also finds that good cause exists under the Congressional 
Review Act, 5 U.S.C. 808, to implement this interim rule immediately 
upon publication in the Federal Register.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). Because good 
cause exists for issuing this regulation as an interim rule, no 
regulatory flexibility analysis is required under the RFA.

C. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA),

[[Page 23781]]

2 U.S.C. 1531-1538, requires Federal agencies to prepare a written 
assessment of the costs, benefits and other effects of proposed or 
final rules that include a Federal mandate likely to result in the 
expenditure by State, local or tribal governments, in the aggregate, or 
by the private sector of more than $100 million in any one year 
(adjusted for inflation with 1995 base year). Before promulgating a 
rule for which a written statement is needed, section 205 of UMRA 
requires an agency to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome option that achieves the objective of 
the rule. Section 205 allows an agency to adopt an alternative, other 
than the least costly, most cost-effective, or least burdensome option 
if DHS publishes an explanation with the final rule.
    As discussed below under Executive Order 12866, this action will 
result in the expenditure by the private sector of $100 million or more 
in any one year, but these fees are mandated by statute and USCIS is 
obligated to implement the law as enacted by the OAA. Further, these 
costs do not accrue to the general public, but only those who choose to 
participate in the H-1B program, nor will they result in expenditures 
in excess of $100 million a year by State, local, or tribal 
governments.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This interim rule is a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This interim rule 
will result in an annual effect on the economy of more than $100 
million.

E. Executive Order 12866

    This interim final rule is considered by DHS to be an economically 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. The implementation of this 
interim rule will provide USCIS with an additional $36,200,000 in FY 
2005 in annual fee revenue over the fee revenue that would be collected 
under the current fee structure, based on a projected annual fee-paying 
volume of 20,000 approved petitions. This interim rule would provide 
USCIS with $138,425,000 in FY 2006 annual fee revenue, based on a 
projected annual fee-paying volume of 85,000 approved petitions (20,000 
new exemptions and 65,000 petitions). This increase in revenue pursuant 
to the OAA (and ACWIA as amended), will be used to fund grants for 
training in high-growth industries, job training services and related 
activities, and programs and activities to prevent and detect fraud 
with respect to H and L petitions. Accordingly, this rule has been 
submitted to the Office of Management and Budget (OMB) for clearance.
    USCIS is issuing this rule in order to provide for a fair and 
equitable allocation of additional H-1B numbers made available for FY 
2005 by Congress.
    USCIS has assessed both the costs and benefits of this rule as 
required by Executive Order 12866, section 1(b)(6), and has made a 
reasoned determination that this rule will result in additional costs 
to petitioning employers. The additional costs to employers are due to 
the new statutory requirement that H-1B petitioners must now pay an 
additional fee of either $1,500 or $750 per petition, depending upon 
the size of the business, unless otherwise exempt. In addition to the 
$1,500 or $750 fee, as of March 8, 2005, H-1B petitioners must also pay 
a separate fee of $500 per petition to assist federal agencies in fraud 
prevention and detection.
    USCIS estimates that for FY 2005, all of the aforementioned new 
fees will cost H-1B petitioning employers an additional $36,200,000. 
DHS reached this conclusion by estimating that approximately half of 
the 20,000 new H-1B petitions that will be approved for FY 2005 
employment will be for businesses with 25 or less full-time equivalent 
employees ($750 x 10,000 = $7,500,000), while the other half will be 
for businesses with 26 or more full-time equivalent employees ($1,500 x 
10,000 = $15,000,000). USCIS has also included in this estimate the new 
$500 Fraud Prevention and Detection Fee applicable to the forthcoming 
20,000 new H-1B petition approvals for FY 2005 employment ($500 x 
20,000 = $10,000,000).
    There will also be an additional 20,000 I-129 petitions approved 
for new H-1B employment in FY 2005 at a base filing fee cost of $185 
per Form I-129, which adds an additional cost to H-1B petitioners ($185 
x 20,000 = $3,700,000). Therefore, the total additional cost to the 
public during FY 2005 is $36,200,000.
    In future fiscal years, the additional cost to H-1B petitioners is 
estimated to be $138,425,000 each fiscal year. USCIS reached this 
conclusion by estimating that approximately half of the 85,000 H-1B 
petitions approved per fiscal year will be for businesses with 25 or 
less full-time equivalent employees ($750 x 42,500 = $31,875,000), 
while the other half will be for businesses with 26 or more full-time 
equivalent employees ($1,500 x 42,500 = $63,750,000). USCIS includes in 
this estimate the fact that an additional 20,000 petitions for H-1B 
classification will be filed each fiscal year at a base filing fee cost 
of $185 per I-129 petition ($185 x 20,000 = $3,700,000). USCIS has also 
included in this estimate the new $500 Fraud Prevention and Detection 
Fee applicable to 78,200 new H-1B petitions approved per fiscal year 
($500 x 78,200 = $39,100,000). USCIS notes that the $500 Fraud 
Prevention and Detection Fee is not required for Chileans and 
Singaporeans entering the United States under the Free Trade 
Agreements. Therefore, USCIS estimates that the total additional cost 
to the public in the future each fiscal year will be $138,425,000.
    Although this interim rule will result in additional costs to H-1B 
petitioners that may deter some employers from seeking H-1B 
nonimmigrant workers, USCIS notes that these fees and the specific 
amounts of these fees are mandated by statute. USCIS is obligated to 
implement the law as enacted by the OAA.
    The benefit of this interim rule is that affected employers will be 
able to address inconveniences and difficulties caused by the reaching 
of the FY 2005 H-1B, and USCIS will be able to facilitate that process 
in a manner that is fair to all employers. This interim rule will also 
facilitate the hiring of H-1B nonimmigrant aliens by U.S. employers who 
have not been able to fill jobs due to the H-1B cap being reached early 
in recent fiscal years and who demonstrate that they are willing to 
offer the same prevailing wage and working conditions as those of U.S. 
workers. The fees imposed will benefit congressional purposes of 
education for low-income students, job training for U.S. workers, and 
fraud detection and prevention in immigration programs.
    USCIS will receive a larger number of filings subject to the 
increased filing fees than the number of petitions that ultimately will 
be approved. Almost all of such filings, however, will be those 
received in excess of the applicable numerical limits, and USCIS will 
be rejecting or refunding fee payments for such petitions. Petitions 
that are exempt from the cap, because they are for beneficiaries who 
are already in H-1B status and were previously been counted against the 
cap, are also exempt from the ACWIA fees. Such petitions, the number of 
which is unpredictable, are not exempt from the $500 fraud prevention 
and detection fee. Also a somewhat unpredictable number of petitions 
subject to the new ACWIA and fraud detection and prevention fees will 
be filed for initial petitions that will be denied or withdrawn, and 
those will be

[[Page 23782]]

in excess of the 85,000 set forth above. These petitions will impose 
costs on the employers that result from the OAA and this interim final 
rule, but funds will be applied to the congressionally required, 
publicly beneficial purposes of low-income student education, job 
training, and fraud detection and prevention. During fiscal years 2001, 
2002 and 2003, an average of less than 2.5 percent of initial petitions 
were denied; thus, this cost factor is relatively insignificant.
    The additional fees mandated by the OAA are not being codified by 
USCIS within the context of this rulemaking. However, USCIS, in a 
future rulemaking, will amend 8 CFR 214.2(h)(19), which currently 
addresses the fees initially required pursuant to ACWIA, to reflect the 
enhanced ACWIA fees of $1,500 (or $750) and to codify the new fraud 
prevention and detection fees ($500) affecting all H and L petitioners. 
USCIS notes, however, that the Form I-129 has recently been revised to 
comport with the provisions of the OAA by adding a supplement titled H-
1B Data Collection and Filing Fee Exemption. The inclusion of the H-1B 
Data Collection and Filing Fee Exemption supplement within the revised 
Form I-129 has rendered the previous Form I-129W moot, as it captures 
the required information previously obtained via the Form I-129W. 
Therefore, the Form I-129W has been removed from the USCIS forms 
inventory. OMB has approved the revised Form I-129 for official use by 
the public and USCIS has released the revised Form I-129 for official 
use as of March 11, 2005. Petitioners are urged to consult and comply 
with the instructions on the revised I-129 and the H-1B Data Collection 
and Filing Fee Exemption supplement when filing their petitions for H-
1B nonimmigrant workers.
Accounting Statement
    As required by OMB Circular A-4 (available at https://
www.whitehouse.gov/omb/circ), in Table 1, USCIS has prepared an 
accounting statement showing the classification of the expenditures 
associated with the Allocation of Additional H-1B Visas created by the 
H-1B Visa Reform Act of 2004. The table provides our best estimate of 
the dollar amount of these costs and benefits, expressed in 2005 
dollars, at three percent and seven percent discount rates. We estimate 
that the cost of this interim rule will be approximately $125 million 
annualized (7 percent discount rate) and approximately $127 million 
annualized (3 percent discount rate). The non-quantified benefit is 
compliance with the OAA.

 Table 1.--Accounting Statement: Classification of Expenditures, FY 2005
                             Through FY 2014
                             [2005 dollars]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                   Three Percent Annual Discount Rate
BENEFITS
 
Annualized monetized benefits
(Un-quantified) benefits: compliance with the law; funding of
 congressionally mandated programs; acquisition of needed professional
 workers
 
COSTS
 
Annualized monetized costs: $127 million
Annualized quantified, but un-monetized costs
Qualitative (un-quantified) costs
                   Seven Percent Annual Discount Rate
 
BENEFITS
 
Annualized monetized benefits
(Un-quantified) benefits: compliance with the law; funding of
 congressionally mandated programs; acquisition of needed professional
 workers
 
COSTS
 
Annualized monetized costs: $125 million
Annualized quantified, but un-monetized costs
Qualitative (un-quantified) costs
------------------------------------------------------------------------

    In accordance with the provisions of E.O. 12866, this regulation 
was reviewed by the Office of Management and Budget.

F. Executive Order 13132

    This interim rule will not have substantial direct effects on the 
states, on the relationship between the National Government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this interim rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

G. Executive Order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to OMB, for review and approval, any 
reporting and recordkeeping requirements inherent in a rule. This 
interim rule does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act. As previously stated 
under Executive Order 12866, the Form I-129, Petition for Nonimmigrant 
Worker (OMB 1615-0009), has recently been revised to include the H-1B 
Data Collection and Filing Fee Exemption supplement to comport with the 
provisions of the OAA. These revisions include amendments to the H-1B 
Data Collection and Filing Fee Exemption Supplement to capture 
information about the beneficiary's level of education and whether the 
degrees were earned from a U.S. institution of higher education; to 
assist U.S. employers in assessing whether they are subject to the new 
$1,500 (or $750) ACWIA and $500 Fraud Detection and Prevention fees; 
and to assist U.S. employers in assessing whether they are eligible for 
the numerical limit exemptions provided under section 214(g)(5) of the 
INA. OMB has approved the revised Form I-129 for official use by the 
public (OMB Control Number 1615-0009); however, USCIS will continue to 
accept the prior paper

[[Page 23783]]

editions of Form I-129 until May 30, 2005. In addition, by increasing 
the number of Forms I-129 and Forms I-907 being submitted as a result 
of the OAA, USCIS has submitted to OMB for emergency clearance the 
Paperwork Reduction Change Worksheet (OMB-83C) increasing the total 
annual burden hours. Further, USCIS has submitted to OMB for emergency 
clearance Paperwork Reduction Act Submission (OMB 83-I) to permit USCIS 
to concurrent use of the Form I-129 (edition date 3-17-05, OMB 1615-
0009 and the old Form I-129 (edition date 12-10-01, OMB 1115-0168, OMB 
1615-0093) until May 30, 2005. Due to this temporary information 
collection, USCIS submitted the OMB 83-I to formally request that OMB 
adjust the burden hours for the use of the 12-10-01 version of the Form 
I-129. The public should reference the Federal Register notice 
contained at 70 FR 20590 (Apr. 20, 2005) for information about this 
collection. Please note however that USCIS hereby extends the deadline 
for comments solicited in that notice until May 30, 2005.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 
1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 643, Pub. 
L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free 
Association with the Federated States of Micronesia and the Republic 
of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 
1901 note, and 1931 note, respectively, 8 CFR part 2.


0
2. Section 214.2 is amended by
0
(a) Revising (h)(2)(i)(A);
0
(b) Revising (h)(8)(ii)(B);
0
(c) Removing (h)(8)(ii)(C) and redesignating (h)(8)(ii)(D) through (F) 
respectively as (h)(8)(ii)(C) through (E);
0
(d) Revising the last sentence of newly designated (h)(8)(ii)(C) to 
read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (A) General. A United States employer seeking to classify an alien 
as an H-1B, H-2A, H-2B, or H-3, temporary employee shall file a 
petition on Form I-129, Petition for Nonimmigrant Worker, only with the 
USCIS Service Center which has jurisdiction in the area where the alien 
will perform services, or receive training, even in emergent 
situations, except as provided in this section or as specifically 
designated by USCIS via notice in the Federal Register.
* * * * *
    (8) * * *
    (ii) * * *
    (B) When calculating the numerical limitations for a given fiscal 
year, USCIS will make numbers available to petitions in the order in 
which the petitions are filed. USCIS will make projections of the 
number of petitions necessary to achieve the numerical limit of 
approvals, taking into account historical data related to approvals, 
denials, revocations, and other relevant factors. USCIS will monitor 
the number of petitions (including the number of beneficiaries 
requested when necessary) received and will notify the public of the 
date that USCIS has received the necessary number of petitions (the 
``final receipt date''). The date of publication will not control the 
final receipt date. When necessary to ensure the fair and orderly 
allocation of numbers in a particular classification subject to 
numerical limits, USCIS may randomly select from among the petitions 
received on the final receipt date the remaining number of petitions 
deemed necessary to generate the numerical limit of approvals. This 
random selection will be made via computer-generated selection as 
validated by the Office of Immigration Statistics. Petitions not 
randomly selected, and petitions received after the final receipt date, 
will be rejected. If the final receipt date is the same as the first 
date on which petitions subject to the applicable cap may be filed 
(i.e., 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.
    (C) * * * The petition shall be revoked pursuant to paragraph 
(h)(11)(ii) of this section and USCIS will take into account the unused 
number during the appropriate fiscal year.
* * * * *

    Dated: May 2, 2005.
Michael Chertoff,
Secretary.
[FR Doc. 05-8992 Filed 5-2-05; 3:58 pm]
BILLING CODE 4410-10-P