The U.S. Citizenship & Immigration Services (“USCIS”) of the Department of
Homeland Security announced that it will be issuing an interim rule to modify
the application process for H-1B visas. As explained in our prior article of
March 3, 2008, the USCIS will start accepting on April 1, 2008, petitions for
new employment in H-1B status for the 2009 federal fiscal year which begins on
October 1, 2008. The USCIS anticipates that the number of petitions will exceed
the number of visas available under the fiscal year cap. On March 19, 2008, it
was announced that in order to ensure that companies have an equal chance to
receive consideration, the USCIS will implement the following changes:
- The period of time during which the USCIS will accept “cap-subject” H-1B
petitions for inclusion in the anticipated random selection process will be
lengthened from two to five days. This means that filings will be accepted
from April 1 to 7, 2008.
- Multiple filings from the same employer for the same employee, even if
the filings are for different positions, are prohibited. The USCIS did
indicate, however, that related employers could file separate petitions for
the same worker for different positions if they could demonstrate a
legitimate business need. The USCIS will deny or revoke, without refunding
filing fees, multiple filings by the same employer for the same H-1B worker.
- The USCIS will first conduct a random selection process for petitions
for workers who have earned a Master’s or higher degree from a U.S.
university if during the first five business days it receives more than
20,000 such petitions (the Master’s cap being set at 20,000). Petitions not
selected in this initial process will be considered with all other petitions
in the process held for the remaining approximately 65,000 H-1B visas for
cap-subject workers. In the event that in the first five business days fewer
than 20,000 petitions are received on behalf of workers who have earned a
Master’s or higher degree from a U.S. university, no initial, separate
selection process will be conducted for such individuals. Instead, the USCIS
will continue to accept and process U.S. Master’s petitions until the cap of
20,000 is reached.
- The USCIS will not refund any fees made for a filing in which the
petitioner has incorrectly claimed a cap exemption.
Although not included in the interim rule, the USCIS did state that it will
accept as evidence of an academic degree a letter from an authorized school
official indicating that a student has completed all requirements for a degree
(e.g., passed all exams, submitted all papers) and is merely awaiting official
conferral of a degree. It also indicated that the 15-day period for adjudicating
petitions filed in the premium processing program (allowing for expedited
processing by payment of an additional $1,000 fee) will not begin until the
random selection process has been completed.