From the 24 March 2008 Edition of ISSS-BU News H-1B Visa Issues: USCIS Issues Interim Rule on H-1B Visa Processing

Many ISSS-BU News readers are aware that starting April 1, 2008, US Citizenship and Immigration Services (USCIS) will begin to accept H1-B petitions that are subject to the “cap” or limit and have start dates of October 1, 2008.  It is expected that the available visa numbers will run out quickly.  USCIS announced on March 18, 2008 that it plans to publish an Interim Final Rule on H-1B visas modifying the selection process and prohibiting multiple filings. The official rule was published in today’s Federal Register, of March 24, 2008.

USCIS states that the rule will ensure fair and orderly distribution of available H-1B visas by providing companies filing H-1B petitions which are subject to the congressionally mandated numerical limits an equal chance.   This rule will affect the filing of H-1B petitions beginning April 1, 2008.

In view of these changes, the ISSS H-1B Q & A has also been updated and posted on the ISSS website.  View the updated version at: http://isss.binghamton.edu/imm/FAQ_H-1B.html

The changes cited in the interim final rule include:

  • USCIS will apply a random selection process among all H-1B petitions received during the first five business days of accepting applications for the coming fiscal year (for 2008, all petitions received April 1-7 would be included in the process)
  • USCIS will deny petitions from an employer who files multiple H-1B petitions for the same employee.
  • Note: This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need., e.g. both need a CFO (see example in supp. info to ITR)
  • USCIS will first conduct the random selection process for U.S.-earned master’s degree or higher petitions, if more than 20,000 are received in the first five business days available for filing.  Only after the random selection is made for the U.S.-earned master’s degree or higher petitions will it begin random selection for petitions to be counted toward the “regular” 65,000 cap. 
  • Petitions eligible for the U.S.-earned master’s degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business days.
  • USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits.
  • USCIS will not refund fees for any petitions denied as multiple-filings or incorrect claims of exemption.
  • Premium processing requests will not begin until after the random selection process has been completed

To read the USCIS Announcement, visit:
http://www.uscis.gov/files/article/H-1B_multi_filing_19Mar08.pdf

To read the USCIS Fact Sheet, visit:
http://www.uscis.gov/files/article/H-1B_multi_filingFS_19Mar08.pdf

To read the USCIS Q & A, visit:
http://www.uscis.gov/files/article/H-1B_multi_filingFAQ_19Mar08.pdf

To read the USCIS Interim Final Rule:
http://a257.g.akamaitech.net/7/257/2422/01jan20081800/
edocket.access.gpo.gov/2008/pdf/E8-5906.pdf