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The H-1B Visa Reform Act of 2004 was a part of Title IV of the Consolidated Appropriations Act, 2005 (sometimes also called the Omnibus Appropriations Act of 2005) in the United States that focused on changes to regulations governing H-1B visas.^[1]^[2]^[3] It was a successor to previous legislative changes affecting the H-1B, namely: the Immigration Act of 1990, American Competitiveness and Workforce Improvement Act (ACWIA) of 1998, and the American Competitiveness in the 21st Century Act (AC21) of 2000.^[3]^[4] The Consolidated Appropriations Act was signed by George W. Bush, then President of the United States, in early December 2004.^[3]

Title IV of the Consolidated Appropriations Act had another component pertaining to immigration regulations, namely the L-1 Visa Reform Act of 2004, that pertained to L-1 visas.^[1]

Provisions[edit]

Addition of some cap-exempt slots for people with graduate degrees[edit]

Prior to this Act, there were 195,000 slots available under the annual H-1B cap. Nonprofit research institutions were exempt from the cap, and people who had been counted towards the cap already (such as if they were transferring jobs or extending a 3-year H-1B by another 3 years) could apply without being counted against the cap as long as they weren't going over their 6-year limit.

Currently, there are 20,000 H-1B “Master’s cap” slots available for those who have earned a U.S. Master’s degree from an accredited university in their field of endeavor. There are 65,000 “regular cap” slots that are open to all qualified applicants. This to be discussed in further detail below. Employer Requirements. Cap-subject H-1B visa petitions have to be filed in the first five days of April to compete for the 65,000 available visas. Once USCIS fills the 65,000 cap-subject slots, another 20,000 visa petitions are selected in a lottery designated for the graduates of U.S. Universities with master’s degrees or higher. The Consular Sections of the U.S. Embassy and the Consulates are responsible for providing visa services to those seeking to enter the United States for a temporary period and for those wishing to take up indefinite or permanent residence in the United States. Please visit our Global Support Services (GSS) website for complete information on applying for a nonimmigrant. Hello, I have been checking on the new appointment website for Nov dates as I want to go to Delhi consulate on Nov 20, 2012 for my H1B visa interview. Until 7 days back, I had seen that Consulate was opening interview slots for the next 3 weeks or so. But, when I checked again yesterday, I saw no dates available in Nov and first half of December. There are 4-5 dates open in the 3rd and 4th. H1B visa extensions can only be requested by highly skilled foreign workers employed in the U.S. This includes all categories like EB1, EB2, EB3, EB4, and EB5 or investors. These visas are given for a maximum of six years, but AC21 can be extended beyond the time frame. What Are the AC21 Visa Extension Requirements?

The H-1B Visa Reform Act of 2004 effectively reduced the cap from 195,000 to 65,000 visas, but declaring exemptions for the first 20,000 applicants each year with graduate degrees. Specifically:^[3]

The first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000.After those 20,000 slots are filled, USCIS is required to count thosecases against the cap for the remainder of the fiscal year.^[5]
This would begin starting FY 2005 (October 1, 2004 - September 30, 2005) and applications for this could be submitted starting March 8, 2005. For FY 2006, this would apply right from the beginning of applications opening up (i.e., the first week of April 2005).
Nonimmigrants currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions, notwithstanding the fact that the H-1B cap was already met for FY 2005, after December 8, 2004.

Changes to fee structure[edit]

The fee structure was changed as follows:^[3]^[6]

There was no change to the rules governing the base filing fee, that had to be included with all applications (this fee would increase periodically due to inflation—as of 2015, the fee stands at $325).
The structure of the additional fee introduced by the American Competitiveness and Workforce Improvement Act (ACWIA) and modified by the American Competitiveness in the 21st Century Act (AC21) was changed from its original value ($500 at the time of the creation of the fee by the ACWIA, and $1000 after the passage of AC21) to the following payment structure:
- Companies employing 26 or more full-time employees were required to pay a fee of $1500.
- Companies employing 25 or fewer full-time employees were required to pay a fee of $750.
- Nonprofit research institutions applying for the uncapped H-1B continued to be exempt from this fee (this clause was present in ACWIA and AC21).
- The allocation of the money raised between various US agencies and programs was also changed.^[2]
An additional anti-fraud fee of $500 was also instituted, applicable to all except those applying for a three-year extension of an existing H-1B status.
Employers could optionally pay a $1000 fee for premium processing, so that they could get to know quickly if the application was approved.

Renewal of LCA attestation requirements and expansion of DOL investigative authority[edit]

The Labor Condition Application (LCA) attestations that were introduced for H-1B-dependent employers and those who had committed willful misrepresentations recently were renewed. These attestations continue to be required as of 2015.^[3]^[4]

Elimination of the '95% rule' for the prevailing wage requirement[edit]

The '95% rule' for prevailing wages, where employers needed to pay only 95% or more of the prevailing wage, was eliminated: employers were now required to pay at least 100% of the prevailing wage.^[3]^[4]

Changes to Department of Labor investigative authority[edit]

The DOL was given authority to investigate when the Secretary of Labor personally certifies that there is reasonable cause to believe that the employer is not in compliance and authorizes the investigation, or when a credible source provides information that includesallegations that within the past 12 months an employer has willfully failed to meet an LCA condition, has engaged in a pattern or practice of violations, or has committed a substantial failure to meet an LCA condition that affects multiple employees.^[3]^[4]

Formal lines of defense for employers[edit]

Employers were given two recognized, standard lines of defense they could use in case of any investigation or identification of problems with their applications:^[4]

Good Faith Compliance Defense: H-1B employers are considered to have complied in good faith with the program requirements notwithstanding a 'technical or procedural failure' to meet such requirements, if the employer:
1. Made a good faith attempt to comply;
2. Voluntarily corrected the failure within 10 business days of having it explained by the DOL or another enforcement agency; and
3. Has not engaged in a pattern or practice of willful violations.
Recognized Industry Standards Defense: H-1B employers that have established that the prevailing wage used was calculated consistent with recognized industry standards and practices will not be assessed fines or penalties for prevailing wage violations.

References[edit]

^ ^a^b'Consolidated Appropriations Act, 2005'. United States Government Publishing Office. December 8, 2004. Retrieved March 29, 2015.
^ ^a^bXie, Jeff (December 21, 2004). 'H-1B Visa Reform Act of 2004 -- H.R.4818'. uslawnet.com, Xie Law Offices, LLC. Retrieved March 29, 2015.
^ ^a^b^c^d^e^f^g^h'USCIS TO IMPLEMENT H-1B VISA REFORM ACT OF 2004'(PDF). United States Citizenship and Immigration Services. December 9, 2004. Retrieved March 29, 2015.
^ ^a^b^c^d^e'Fact Sheet #62A: Changes made by the H-1B Visa Reform Act of 2004'(PDF). United States Department of Labor. July 1, 2008. Retrieved March 29, 2015.
^Batalova, Jeanne (April 7, 2010). 'H-1B Temporary Skilled Worker Program'. Migration Policy Institute. Retrieved March 29, 2015.
^'H-1B Benefit Fraud & Compliance Assessment'(PDF). United States Citizenship and Immigration Services. September 1, 2008. Retrieved March 29, 2015.

Retrieved from 'https://en.wikipedia.org/w/index.php?title=H-1B_Visa_Reform_Act_of_2004&oldid=980331526'

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Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay or an immigrant visa for permanent residence. Citizens of qualified countries may be also able to visit the United States without a visa under the Visa Waiver Program. If you do not qualify for the Visa Waiver Program or are traveling to study, work, or participate in an exchange program, you must apply for a nonimmigrant visa.

Most applicants for U.S. visas are required to appear in person for a visa interview at the U.S. Embassy or Consulate General, and must schedule an appointment for that interview, either online using this website or through the call center.

If you are renewing a previous U.S. visa and qualify for an interview waiver click here for more information, you must also use the website or call center to register your application, and then drop off your passport and associated documents at any branch of CITIC Bank.