USCIS Issues Rule Clarifying the Deadline for FY 2009 H-1B Petition Filings
March 25, 2008
Immigration Alert - March 25, 2008
One week before the expected onslaught of H-1B petition filings from employers, the U.S. Citizenship and Immigration Services (“USCIS”) issued an Interim Rule which is intended to the promote the “fair and orderly administration” of the FY 2009 annual limit on H-1B petition filings. The following are the highlights from the Interim Rule:
- Because the USCIS intends to conduct a lottery to determine which H-1B petitions are processed, some employers had considered submitting more than one petition for a foreign national to increase their chances of success. The Interim Rule states that the USCIS will deny or revoke a petition if the employer filed multiple H-1B petitions for the same worker. If the duplicate filing is discovered after processing of the petition is complete, any approval will be revoked and the filing fees will not be returned. Separate but related corporate entities, such as a parent and a subsidiary, may each file petitions for the same person in different positions, but only if there is a “legitimate business need” to do so.
- The Interim Rule extends the time in which the USCIS will accept petitions to be included in the lottery from the first two (2) business days of the FY 2009 filing period to the first five (5) business days. Assuming, as is likely, that the petitions submitted will exceed the annual cap, USCIS will accept filings for the first five business days of April 2008 (through Monday, April 7), and then conduct the lottery among those petitions. However, the best practice is to submit petitions on April 1.
- If the petitions received during the initial filing period exceed the cap for both the 65,000 limit and the 20,000 additional limit for aliens holding a U.S. advanced degree, then the USCIS will first conduct a lottery for the 20,000 U.S. advanced degree category. Any petitions not selected will automatically be considered for random selection with other H-1B petitions in the broader 65,000 limit. Thus, there is no reason to file a petition in each category for a foreign national who qualifies for both, and, in fact, such duplicate filings are prohibited.
Click here to see our previous Alert about the H-1B cap for FY 2009. More information about the Interim Rule and FY 2009 H-1B petition filing is available from the USCIS Web site.