H-1B Visa Cap Reached After First Week

The United States Citizenship and Immigration Services (USCIS) announced on April 8, 2007, that it has received enough H-1B petitions to meet the H-1B cap for Fiscal Year 2009 (which begins on October 1, 2008). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. “advanced degree” exemption. The agency will complete initial data entry for all filings received during the filing period ending on April 7, 2008, before running the random selection process or lottery.

Due to the high number of petitions, USCIS currently is unable to announce the precise day on which it will conduct the lottery for all petitions received subjected to caps. It will select the number of petitions needed to meet the caps (65,000 for the general category and 20,000 under the “advanced degree” exemption limit). USCIS will reject, and return the filing fees, for all cap-subject petitions not randomly selected, unless the petition is found to be a duplicate. The agency’s rule for duplicate filings was published in the Federal Register and is effective as of March 24, 2008. Under the new rule, USCIS will deny or revoke outright multiple or duplicate petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. 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. The interim final rule becomes effective upon publication in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

To avoid the filing rush witnessed last year when the cap was reached on the first day on which petitions could be filed (April 2, as April 1 was a Sunday), USCIS this year granted U.S. employers a five-day window within which to file H-1B cap cases. Also, unlike last year when the H-1B cap for graduates of U.S. universities holding a master's or higher degree was reached on April 30, 2007, this year both the general cap and the U.S. advanced degree cap were reached at the same time.

Current holders of H-1B visas are not affected by the cap. USCIS will continue to process petitions to:

  1. Extend the stay of current H-1B holders;
  2. Change the terms of employment of current H-1B holders;
  3. Allow current H-1B holders to change employers unless the change involves a switch from a cap-exempt to a non-exempt employer;
  4. Allow current H-1B holders to obtain concurrent employment authorization with another employer.
  5. Allow current H-1B holders to work at exempt entities such as institutions of higher education and related/affiliated organizations.
  6. Allow J-1 physicians who have obtained a waiver of the home country residency requirement through the Conrad program or a similar federal program to change status to H-1B.

Attached is the USCIS’s press release. Your immigration counsel should be consulted to determine whether your case is subject to the H-1B cap issues and, if so, to discuss available visa options.

Related Links
USCIS Update[23 KB]