Changes to H-1B Filing Procedures Announced

March 20, 2008

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.