USCIS Issues Interim Final Rule Regarding H-1B Petitions

On March 19, United States Citizenship and Immigration Services (USCIS) issued an interim final rule that modifies the random-selection process and prohibits multiple filings of H-1B petitions. Specifically, the interim rule provides for the following:

• USCIS will deny or revoke multiple petitions filed on behalf of the same H-1B worker by an employer and will not refund the filing fees. Please note, this does not apply to filings made by related entities on behalf of the same foreign national for different positions, assuming a legitimate business need exists in each entity.
• If more than 65,000 cap-subject H-1B petitions and/or 20,000 advanced degree exemption petitions are received by USCIS in the first five business days, it will be necessary for USCIS to utilize the random-selection process (“lottery”). This is a significant change from prior procedure. Last year, more than 65,000 cap-subject H-1B applications were received on the first day of filing, and USCIS held an H-1B lottery that included cases received in the first two business days. The change means that, assuming USCIS receives a volume of H-1B applications that exceeds the quota of visas available, all cases received on or before April 7, 2008 will be included in the H-1B lottery. In addition, should the 20,000 advanced degree exemption quota be reached during the first five business days, the random-selection process will be conducted first for those petitions, and any petitions not accepted for the exemption will then be included in the regular random-selection process.
• The 15-day premium processing adjudication period will not begin until the random-selection process has been completed by USCIS.
• If an H-1B petition incorrectly claims a numerical exemption and no H-1B visa numbers are available, the petition will be denied and the filing fees will not be returned.

Background

On April 1, 2008, USCIS will begin accepting cap-subject H-1B petitions that request an employment start date of October 1, 2008 (the first day of the 2009 fiscal year), or later. Only 65,000 cap-subject H-1B petitions may be approved per fiscal year. An exemption from the 65,000 cap is available to holders of a master’s or higher degree from a U.S. institution of higher education, up to a limit of 20,000 petition approvals. Please note that only petitions that are filed on behalf of foreign nationals who have not previously been counted against the H-1B cap will be subject to this cap. Petitions on behalf of foreign nationals who have previously been counted against the H-1B cap or who are employed (or have received an offer of employment) at an institution of higher education, nonprofit research organization, or governmental research organization are not subject to the cap.

Please note that all H-1B petitions subject to the 2009 cap received by USCIS before April 1, 2008 will be rejected.

How This Affects You

We expect that USCIS will receive sufficient cases within the first few days of April to necessitate an H-1B lottery for both the advanced degree quota of 20,000 and the regular quota of 65,000 H-1Bs. The elimination of multiple filings is intended to promote a fair and equitable distribution of H-1B visas, providing an equal chance for all petitioners. In addition, unexpected delays by a courier service will be mitigated by including all petitions received in the first five business days in the expected lottery. The fact that the lottery for the advanced degree quota will be conducted first, and then any cases not selected will be included in the lottery for the 65,000 slots, effectively gives the advanced degree quota cases “two bites at the apple.”

We recommend that all employers who wish to file H-1B petitions that will be subject to the 2009 cap contact us immediately.

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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