March 30, 2005

DHS Sends Interim Rule Regarding Allocation of the Increased H-1B Cap by 20,000 to OMB

The Department of Homeland Security (DHS) has sent its new interim rule to the Office of Management and Budget (OMB) regarding the allocation of visas under the increased cap of 20,000 for the fiscal year 2005. Once OMB clears this regulation, it will go back to DHS for signature, and on to the Federal Register for publication. This process usually takes a few days, and can even run into weeks. However, this rule is being expedited, and could be published as early as next week.

In addition, United States Citizenship and Immigration Services (USCIS) previously issued guidance indicating that the new cap exemption would apply to all qualified H-1B visa applicants, and not just those holding a US Masters or higher degree. To date, this guidance has continued to stand. However, if USCIS decides to rescind its earlier decision, and restrict the additional 20,000 visas to advanced degree holders, the new interim final rule will contain such a provision.

If this occurs, we will convert start dates to October 1, and address any gaps in status until that date, on an as needed basis.

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