The U.S. Citizenship & Immigration Services (“USCIS”) of the Department of
Homeland Security 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. Last year, the USCIS received more than 133,000 petitions, over
twice the number of visas available under the annual cap, on the first day of
the 2008 federal fiscal year filing season. The government, therefore,
implemented a computerized random selection process for all filings received on
that first day and the following day to determine which petitions would be
processed. The USCIS anticipates that this year it will have to follow the same
Under current law, the number of H-1B visas that can be issued for new
employment in a federal fiscal year is capped at 58,200 plus any of 6,800 H-1B
visas set aside for Chilean and Singaporean citizens that were not used during
the prior fiscal year. For the 2008 federal fiscal year, USCIS added 5,800
unused Chilean/Singaporean visas. In addition, 20,000 H-1B petitions for foreign
nationals with U.S. earned Master’s or higher degrees are annually exempted from
the cap. Last year, this 20,000 limit was reached on April 30, 2007.
There are various categories of H-1B petitions that are not subject to the
cap and employers can file these petitions at any time of the year. These
categories include petitions to:
Request new employment by a “cap-exempt”
employer, an institution of higher education or related or affiliated
nonprofit entity or a nonprofit research organization or governmental
Extend the time a current H-1B worker may remain
in the United States;
Change the terms of employment for current H-1B
Allow current H-1B workers to change employers
(unless the change is from a cap-exempt to a cap-subject employer); and
Allow current H-1B workers to work concurrently
under a new H-1B petition.
A foreign national who has already been counted against the cap within the
previous six years will not be subject to it again unless he or she is seeking a
change of employment from a cap-exempt to a cap-subject employer or he or she
has left the United States for more than a year and on that basis is eligible
for the maximum six-year period of authorized stay in H-1B status. In December
of 2006, the USCIS issued a memorandum which effectively created another
exemption to the H-1B cap. The USCIS made clear that it would not consider an
individual subject to the H-1B cap if the individual worked in H-1B status for
less than the six-year maximum, has been outside the United States for a year or
more, and is now returning to work for the remainder of his or her unused six
years rather than seeking a new six-year term.
The USCIS has recently posted on its web page (www.uscis.gov)
“Helpful Hints” and answers to frequently asked questions about H-1B filings.
The agency’s advice includes the following:
Clearly label all H-1B cap cases in red ink on
the top margin of the Form I-129 petition using the following codes: Reg.
Cap (for all cases except the immediately following three categories); C/S
Cap (Chile/Singapore H-1B1s); U.S. Master’s (beneficiary with U.S. Master’s
or higher degree); or Exempt (for cap-exempt employers).
Fill out Form I 129, the H classification
supplement and the H-1B data collection and filing fee exemption supplement
correctly, consistently and completely, signing all forms in blue ink.
Submit the correct fees as shown on the form
instructions (with separate checks for each preferable): $320 base filing
fee; ACWIA fee of $750 for employers with 1 to 25 full time equivalent
employees and $1,500 for employers with 26 or more full time equivalent
employees unless exempt; $500 fraud fee (not applicable to Chile/Singapore
H-1B1 cases); and $1,000 Premium Processing fee for those who want to expedite
Send only one petition per envelope, though
several envelopes may be mailed together in one mailing package.
Submit H-1B petition to correct USCIS Service
Center. All petitions should be sent to either California or Vermont,
depending on the place of intended employment for the H-1B worker. All
cap-exempt petitions should be submitted to the California Service Center.
The USCIS has recently suggested that it may be releasing a regulation to
deal with the following:
Multiple filings. While both the USCIS and
the Immigration bar disfavor duplicate H-1B filings for the same worker,
there is no explicit prohibition in the law at the present time. If such a
prohibition were enacted, it is unclear how far it would extend. For
example, would the USCIS allow multiple filings for the same worker if the
filings were made by different employers? Would it allow multiple filings by
a single employer for multiple positions?
Pre-registration. The USCIS has hinted
that it would adopt a procedure by which employers would first file a
simplified H-1B petition requesting a quota number and then, if the filing
were chosen in the H-1B cap lottery, a more complete H-1B petition. This is
not the current law and it seems unlikely that the USCIS will be able
to implement such a procedure by April 1, 2008.