U.S. Citizenship and Immigration Services (USCIS) has issued clarifying regulations
today, explaining how exactly the H-1B
application process will be handled this year. Some important changes have been
announced to the process, including the benefit of having five business days to
file the petition even if the cap runs out on the first day, prohibition on filing
of multiple petitions by the same employer for the same employee, explanation
of the Master's cap and a clarification on the Premium Processing rules.
USCIS issued an interim final rule today that prohibits employers from filing
more than one petition for an H-1B visa for a single employee in a fiscal year.
The change is intended to promote a fair and systematic process for H-1B petitioners.
This rule ensures that companies filing H-1B petitions that are subject to numerical
limits will have an equal chance to receive consideration for an H-1B worker.
The interim final rule will become effective upon publication in the Federal Register
and may be accessed via USCIS' website at www.uscis.gov.
Background
U.S. businesses utilize the H-1B program to employ foreign workers in fields that
require theoretical and practical expertise in specialized occupations requiring
a bachelor's degree or higher (or its equivalent), such as scientists, engineers,
or computer programmers. By law, 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.-earned 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 master's 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-Exempt Petition
USCIS also notes that petitions for new H-1B employment are exempt from the cap
if the aliens will work at the defined institutions of higher education or a related
or affiliated nonprofit entities, or at nonprofit research organizations or governmental
research organizations. Thus, employers may continue to file petitions for these
exempt H-1B categories regardless of H-1B visa number availability.
Cap Procedures
USCIS will use the following process for handling H-1B petitions subject to the
FY 2009 cap:
- April 1, 2008 is the first day petitions may be received for an October
1, 2008 start date. When it is determined that the numerical limitations have
been reached, USCIS employs a random selection process to choose among the
petitions received on the "final receipt date." If the "final receipt date"
falls within any one of the first five business days, the random selection
will be run using all the cap-subject petitions received on those five days.
- 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. The new rule
clarifies that this provision only applies to petitions that indicate they
are cap-subject. If a petitioner 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.
In order to fully utilize its data entry and initial processing capacity, USCIS
may choose to distribute filings received at one service center to other service
centers for data entry. In the event that USCIS exercises this option, petitioners
may receive receipt notices or other correspondence from a service center other
than the one to which their H-1B petition was mailed.
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 period (processing deadline)
will not begin until such time as 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 holds 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. Even if USCIS issues a refund of the premium
processing fee, it will continue to provide premium processing for these filings
until completion.
Current H-1b Workers
Petitions filed on behalf of current H-1B workers (who have already been counted
towards the cap) do not count towards the congressionally mandated H-1B cap.
Accordingly, this rule does not affect USCIS processing of petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change from one cap-subject position to a different cap-subject position with a different employer; or
- Allow current H-1B workers to work concurrently in a second H-1B position.
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