Important Changes To The FY 2009 H-1b Cap Program And Filing Procedures
March 21, 2008

Multiple H-1B Petitions Filed for the Same Employee Prohibited

On March 19, 2008, the U.S. Citizenship and Immigration Services (USCIS) issued an interim final rule that prohibits employers from filing multiple H-1B petitions for the same employee. These changes are intended to ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicate petitions.

This rule does not prohibit 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.

H-1B CAP Program

USCIS cannot grant more than 65,000 new H-1B visas per fiscal year subject to certain limited exceptions. The first 20,000 H-1B petitions filed on behalf of aliens with U.S. masters’ or higher degrees are exempt from the H-1B numerical limitation of 65,000. USCIS administers a separate “20,000 cap” for such exempt petitions.

USCIS will use a random selection process for all the masters’ degree or higher cap-exempt cases received on the FIRST FIVE BUSINESS DAYS available for filing H-1B petitions for a given fiscal year, if necessary. In the event that the U.S. master’s exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap. Petitions eligible for the U.S. 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.

Cap Procedures

April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. If the USCIS determines that the numerical limitations have been reached within the FIRST FIVE BUSINESS DAYS, it will employ a random selection process.

USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. If a petitioner, however, claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.

Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

Premium Processing

Cap-subject petitions requesting premium processing that are received on the “final receipt date,” or during the initial five business day period mentioned above, cannot be processed until after the random selection has been completed. The premium processing 15-day adjudication will not begin until USCIS has completed the random selection process.

The number of master’s exemption cases received cannot be determined until all the petitions have been sorted and counted. The same is true for the master’s exemption premium processing cases. In accordance with established guidelines, USCIS will refund premium processing fees for any filings for which it cannot meet processing deadlines.

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