| ALERT: Changes to H-1B Filings |
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| Thursday, 27 March 2008 | |
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By rule effective March 24, 2008, USCIS will make several important changes to the way H-1B filings will be processed. By way of general background, the H-1B visa program is used by U.S. businesses to employ foreign workers in occupations that normally require at least a bachelor’s degree or equivalent education.
The number of H-1B visas available each year is limited or capped by law. There are approximately 65,000 H-1B visas available per fiscal year (October 1st to September 30th), subject to certain limited exceptions. There is an exemption of 20,000 from this cap for those with advanced degrees (Master’s or higher) from United States universities. The first day that H-1B petitions may be received by USCIS for an October 1st start date is April 1st. Petitions received before April 1st will be rejected by USCIS. Last year the number of H-1B visa petitions filed far exceeded the 65,000 cap and pursuant to the regulations, a random selection process was used for those received on the first 2 business days to determine which petitions would be adjudicated. The new rule provides that USCIS will include petitions filed on all of the first 5 business days in the random selection process, if USCIS receives a sufficient number of petitions to reach the 65,000 or 20,000 cap on any one of the first 5 business days. Since it is highly likely that both the regular and U.S. advanced degree cap will be reached the first or second day, this change essentially creates a longer filing window to April 7th, the fifth business day. 1. U.S. Advanced degree cases - will be separated and counted. If the count exceeds 20,000 on of any of the first 5 business days, USCIS will use a random selection process for those filed on the first 5 business days (April 1-7, 2008). Those U.S. advanced degree cases not selected under the 20,000 will have a 2nd chance to be selected under the 65,000 cap. 2. H-1Bs subject to the 65,000 cap – will be separated and counted. When 65,000 have been counted – most likely on the very first day, USCIS will combine the “65,000 cap” petitions received on the first 5 business days (April 1-7, 2008) with those U.S. advanced degree petitions not selected under the 20,000 cap exemption, and will conduct a random selection process. The following changes and clarifications are noted in the new rule and in guidance from USCIS: 1. Multiple petitions by the same employer for the same H-1B worker will be denied or revoked, if approved before finding it was duplicative. USCIS will deny both petitions if one is filed for the same worker under the U.S. advanced degree cap and another under the 65,000 cap. USCIS will also deny separate petitions filed by same employer for the same worker for different jobs. However, separate petitions filed by different but related employers for the same worker are allowed. (eg. parent and subsidiary companies both file an H-1B petition for the same worker) 2. Filing fees will not be refunded for multiple or duplicative filings that are denied 3. Petitions that are not picked under the random selection process will be rejected and filing fees returned 4. The premium processing 15 day adjudication period will not begin until after USCIS has completed the random selection process. After the selection process is complete, if USCIS does not meet the 15 day premium processing deadline it will refund the premium processing fee. 5. To speed data entry and intake, USCIS may distribute H-1B filings received at one service center to other service centers. In this case, a receipt notice or correspondence may come from a different USCIS center than the one to which the petition was mailed. If you have questions about H-1B processing or would like to initiate filing of an H-1B petition, please contact us at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it Source: BIB.COM |
