Surviving the H-1B Cap – Frequently Asked Questions

By Immigration

United States Citizenship and Immigration Services (USCIS) will begin accepting FY 2009 H-1B petitions on April 1, 2008. Given the high demand for H-1B numbers last year, it is expected that a lottery will be held to determine which petitions will be accepted for processing. The 20,000 exemption for holders of master’s or higher degrees from a United States institution of higher education is also expected to be exhausted quickly. In anticipation of this, we strongly recommend that all H-1B petitions that will be subject to the 2009 cap be sent to the relevant USCIS Service Center by overnight mail on Monday, March 31. Please notify us immediately if you need assistance preparing an H-1B petition for a current or prospective employee.

Surviving the H-1B Cap – Frequently Asked Questions

What is the H-1B cap?

By statute, the number of available H-1B visas is subject to an annual fiscal year limitation of 65,000. Pursuant to the U.S.-Chile and U.S.-Singapore Free Trade Agreements, a maximum of 6,800 of these visas may be set aside for the H-1B1 classification, available only to nationals of Chile and Singapore; however, USCIS may project anticipated fiscal year demand for H-1B1 visas and thus far, significantly fewer than the maximum 6,800 visas have been set aside for this classification. In addition, the first 20,000 H-1B petitions filed on behalf of foreign nationals with a master’s degree or higher from a U.S. university are exempt from the H-1B cap.

Who is subject to the H-1B cap?

The H-1B cap applies to new employment that is not otherwise cap-exempt. Foreign nationals who have not been counted against the H-1B cap within the previous six years are generally subject. Thus, for example, a foreign national seeking to enter the U.S. in H-1B status to work for a for-profit company as a software engineer would likely be subject to the H-1B cap. H-1B workers who are employed at or by certain not-for-profit and government research institutions are cap exempt, as well as those employed at or by institutions of higher education and affiliated nonprofit entities.

Are filings on behalf of current H-1B employees subject to the H-1B cap?

H-1B petitions filed on behalf of current H-1B workers to extend status, change the terms of employment, change employment, or allow for concurrent H-1B employment do not count against the H-1B cap unless an H-1B worker is seeking to change from H-1B employment that is cap exempt to H-1B employment that is cap subject.

When should petitions on behalf of cap-subject foreign nationals be filed?

The annual H-1B cap applies on a fiscal year basis, starting on October 1 and ending on September 30. USCIS will accept H-1B petitions six months prior to the anticipated start date of employment; therefore, cap-subject H-1B petitions may be filed starting on April 1. USCIS received enough H-1B petitions to meet the H-1B cap for fiscal year 2008 on the first day on which filings could be accepted.

When will employers know whether their H-1B petitions have been accepted under the H-1B cap?

USCIS closely tracks the number of cap-subject H-1B petitions received; however, the volume of filings received often results in processing delays. In order to fairly allocate H-1B cap numbers, once USCIS determines the “final receipt date” on which enough petitions have been received to meet the H-1B cap, all petitions received on that date will be subject to a computer-generated random selection process. Petitions that are not randomly selected will be rejected and returned to the petitioner along with the filing fees. This process can take up to several weeks to complete. Therefore, in some cases U.S. employers will not know for several months whether their petitions have been selected for adjudication. Based on how receipting was conducted during fiscal year 2008, it is likely that filing cab-subject H-1B petitions under premium processing will not substantially reduce the amount of time between filing and issuance of a receipt notice.

Is there any advantage to filing more than one H-1B petition on behalf of the same foreign national?

No. While rumor in the immigration community has spread that filing more than one identical H-1B petition on behalf of the same foreign national increases the chances of obtaining an H-1B cap number for that foreign national, USCIS has publicly stated that such filings are discouraged and that duplicate filings will be rejected. USCIS has announced that it is currently drafting a regulation or policy on this issue.

What happens if we want to hire a foreign national student who will graduate with a Bachelor’s degree in May?

To be eligible for the H-1B classification, the foreign national student must have a bachelor’s degree or equivalent. Thus, while he or she must have completed all degree requirements prior to the filing of the H-1B petition, the actual degree need not have been formally conferred. A letter from a school official verifying that all requirements toward the degree have been met prior to the filing date will generally be sufficient evidence of eligibility.

What options exist for foreign nationals who are not selected for an H-1B visa?

Depending on nationality, skill set, and prior employment, nonimmigrant visa classifications—such as TN for citizens of Mexico and Canada, L-1 for intracompany transferees, E for treaty traders and investors, and O for aliens of extraordinary ability—may be available. In addition, U.S. employers with international work sites have the option of sending the individual to work for the company abroad until U.S. work authorization can be secured.

Is it necessary that employers file their H-1B petitions through premium processing?

While employers may file petitions through standard filing or through premium processing, as a practical matter, employers may find it worth the additional $1,000 filing fee to use premium processing, since it is possible that standard petitions might not be approved by October 1, 2008. In addition, use of premium processing provides employers live telephone access to USCIS in order to resolve certain issues and to ask process-related questions.

How This Affects You

We expect that all cap-subject H-1B petitions, including U.S. advance degree petitions, will have to be received by the USCIS on April 1 or April 2 in order to be eligible to participate in the lottery. Therefore, it is imperative that employers assess their need now.

Morgan Lewis & Bockius will continue to monitor the H-1B cap situation and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Lance Nagel
415.442.1345
lnagel@morganlewis.com
 
Washington, D.C.
Eleanor Pelta
202.739.5050
epelta@morganlewis.com

Eric S. Bord
202.739.6040
ebord@morganlewis.com

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