Client Alert

Immigration News: USCIS Releases Advance Copy of Interim Final Regulation Relating to FY 2009 Cap-Subject H-1B Filings

March 19, 2008

The Immigration Practice Group

USCIS today released an advance copy of an interim final regulation that will make changes to certain procedures relating to FY2009 cap-subject H-1B filings. The regulation has been sent to the Federal Register for publication within the next few days, and will be effective as soon as it is published. The regulation does the following:

• Prohibits employers from filing multiple H-1B petitions for the same individual;

• Expands the period during which cases may be received and be eligible for the FY 2009 H-1B lottery to include cases received April 1st through April 7th; and

• Changes the way the "advanced degree" cap is administered, such that if that cap is reached before April 7th, U.S. advanced degree cases are eligible to be considered both for the advanced degree cap and then, if not selected, again under the regular cap.

Background

By statute, only 65,000 "new" H-1Bs are available each fiscal year, with an additional 20,000 "new" H-1Bs reserved for holders of an advanced degree from a U.S. college or university. For FY2009, which begins on October 1, 2008, filings for these H-1Bs can be made beginning April 1, 2008. Last year, the 65,000 H-1B cap was reached on the very first day of filing, and the 20,000 advanced degree cap was reached just a few weeks later. As a result, because more H-1B petitions are filed than there are H-1B numbers available, USCIS conducts a lottery to determine which cases will receive an H-1B number under the cap. The interim rule changes certain procedures relating to how this lottery will be administered.

Multiple Filings Prohibited

The rule prohibits employers from filing more than one H-1B petition for a single beneficiary. The comments to the rule note that when adjudicating H-1B petitions under the cap last year, USCIS found approximately 500 instances of employers filing more than one cap-subject H-1B petition for the same beneficiary, presumably to increase the chances that the individual would be chosen under the lottery. To prevent this perceived unfairness, the rule prohibits more than one H-1B petition from being filed for the same beneficiary by the same employer. In other words, not only are duplicate filings of identical petitions prohibited, but also any other initial filing for the same beneficiary, even for a different job or even at two different degree levels, is prohibited. The rule does, however, allow more than one employer to file H-1B petitions for the same individual. Therefore, if an H-1B beneficiary has three job offers, all three employers could file for the beneficiary. Likewise, if related but separate legal entities wish to file separate H-1B petitions for the same individual, this would be allowed as long as there is a legitimate business need for doing so. However, the same employer can file only one H-1B petition for an individual. If an employer files more than one petition for the same individual, all of the H-1B petitions for that individual will be denied.

Expansion of "Receipt Period" for Inclusion in H-1B Lottery

The rule also expands the filing period during which H-1B petitions will be accepted and then included for selection under the lottery. Previously, if the H-1B cap was reached on the first day of filings (i.e., April 1st), then all filings received during the first two days of the filing period would be eligible for the lottery. Under the new rule, if the H-1B cap is reached during any of the first 5 business days of the filing period (for this year, April 1, 2008 through April 7, 2008), then any H-1B petitions received during that 5 business-day period will be eligible for the lottery.

Process Change for Advanced Degree Exemption and General H-1B Lottery

The rule also changes the way that USCIS will go about determining which cases are chosen for the 20,000 "advanced degree" cap. If enough cases are received during the first five business days of filing to satisfy both the regular cap and the advanced degree cap, then USCIS will first identify all cases received during the first 5 business days that claim to be eligible for the 20,000 "advanced degree" cap, and will then conduct the lottery for the 20,000 advanced degree cap. After that lottery is conducted, any advanced degree cases not chosen in the advanced degree lottery will then become part of the regular pool of H-1B filings, and the lottery for the 65,000 general H-1B cap will be chosen from that pool.

Finally, petitions indicating that they are exempt from the numerical limitation but that are determined by USCIS after the final receipt date to be subject to the numerical limit will be denied and filing fees will not be returned or refunded.

Despite the expansion of the filing period from 2 days to 5 business days, it is still important to file any cap-subject H-1B petitions as early as possible once the filing period opens on April 1st.