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USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue processing the petitions associated with those identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to 10 weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period began on April 14, the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they could replace petitions chosen to receive an FY 2009 cap number but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS said it will send a letter to the wait-list petitioners to inform them of their status. USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees by early to mid-June.

USCIS also announced that, with several exceptions, it will not reject an H-1B petition subject to the fiscal year 2009 cap solely on the grounds that it was received at the wrong service center (e.g., the petition may have been inadvertently mailed to the California Service Center instead of the Vermont Service Center or vice versa). This does not apply if the petitions were sent to the Texas or Nebraska Service Centers.

USCIS said it was taking this “limited, short-term measure to alleviate concerns from the public where an H-1B petition has been received by USCIS but at the incorrect Service Center.” This measure applies only to H-1B petitions subject to the FY 2009 cap that were received by USCIS before the close of business on the final receipt date.

The announcement of the preliminary number of H-1B petitions received is available as a PDF. The announcement about USCIS’s policy regarding receipt at the wrong service center is here.

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The interim rule requires F-1 students with an approved OPT extension to report changes in the student’s name or address and in the employer’s name or address, and periodically to verify the accuracy of this information. The rule also requires the employers of F-1 students with an extension of post-completion OPT authorization to report to the student’s designated school official (DSO) within 48 hours after the OPT student has been terminated from, or otherwise leaves, his or her employment with that employer before the end of the authorized period of OPT. The interim final rule also implements a programmatic change to allow students to apply for OPT within 60 days of finishing their studies.

USCIS said the interim rule ameliorates the so-called “cap-gap” problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the U.S. until the requested start date as indicated in the H-1B petition takes effect.

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The DHS said that visitors departing the U.S. should continue to return their paper Form I-94 or Form I-94W to airline or ship representatives. The DHS completed a test of biometric exit procedures at several U.S. airports and seaports last year. Based on the results, the DHS determined that biometric exit procedures must be integrated into the existing traveler process to ensure compliance and provide visitors with a consistent experience from port to port.

The proposed rule would require commercial air carriers and cruise line owners and operators to collect and transmit international visitors’ biometric information to DHS within 24 hours of leaving the U.S. Carriers are already required to transmit biographic information to DHS for all passengers before their departure from the U.S. The proposed rule does not designate a specific location within the port of departure for biometric collection and does not apply to small carriers or vessel owners and operators, or to general aviation.

The rule proposes a performance standard that requires the carriers to collect biometric information on the premises of the facility from which the passenger departs the U.S., but provides the carriers with some discretion in the manner of collection and submission to allow the carriers to meet the requirements in the most efficient and cost-effective manner.

The DHS requests public comments on all of the alternatives discussed in the proposed rule and the underlying assumptions and analyses. Although the proposed rule identifies means for collection of biometrics, personnel, and methods of transmission, the agency said it also welcomes proposals on alternatives that have not been proposed in the rule. The most useful proposals or alternatives, the DHS said, would include information on how the proposed alternative would reduce the burden on travelers and the travel industry without sacrificing accuracy in the collection of biometric information.

The DHS intends to implement air and sea biometric exit procedures by January 2009, fulfilling a key provision of the Implementing the Recommendations of the 9/11 Commission Act of 2007. The DHS said the proposed rule will enable the DHS to retain the necessary authority to manage the Visa Waiver Program effectively. If the exit program has not been implemented by June 30, 2009, the department may not be able to extend Visa Waiver Program privileges to new countries. The agency said the waiver authority is critical for the U.S. to invite more of its allies to participate in the Visa Waiver Program.

Comments may be submitted via:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. All submissions received must include the agency name and docket number (DHS-2008-0039) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
• Mail: Written comments may be submitted to: Michael Hardin, Senior Policy Advisor, US–VISIT, Department of Homeland Security; 1616 North Fort Myer Drive, 18th Floor, Arlington, Virginia 22209. Submissions must include the agency name and docket number (DHS-2008-0039).

The proposed rule was published in the Federal Register. Following the 60day public comment period and review, a final rule will be published outlining the new requirements and their effective date.

Meanwhile, Sen. Patrick Leahy (D-Vt.) held an oversight hearing on the Department of Homeland Security. The sole witness was Secretary Michael Chertoff. Among other things, Sen. Leahy discussed his concerns about the Department’s implementation of the Western Hemisphere Travel Initiative. “The Department must now make good use of the time Congress has given to make sure that implementation goes smoothly, and to minimize disruption in Americans’ lives and in our relationships with our good neighbors to the north and south,” he said. Sen. Leahy added that “I also share the view of many on both sides of the aisle and across the country about the so-called REAL ID Act and its unfunded mandates for States.” In advance of the hearing, Sen. Leahy said, “The good news is that the Bush administration will not fight the new law that moves the passport requirement to next year. The bad news is that there is little reason to believe DHS will be ready even then.” Statements from Sen. Leahy and Secretary Chertoff are available.

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The DHS said it plans to establish an electronic system of travel authorization for air passengers. VWP travelers will be asked to provide some basic information online, which will generate an authorization number for travel. The agency said it will announce details on how the authorization systems will work, and when they will begin, later this year.

The VWP has 27 current members from Asia and Europe. The U.S. has signed enhanced VWP agreements with the Czech Republic, Estonia, Latvia, Slovakia, Hungary, Lithuania and Malta in recent weeks. Each country has committed to meeting the new security requirements of the program.

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The DHS said it is releasing the WHTI land and sea final rule more than a year in advance of its implementation to give the public ample notice and time to obtain the WHTI-compliant documents they will need to enter or re-enter the U.S. on or after June 1, 2009. The agency noted that many cross-border travelers already have WHTI-compliant documents, such as a passport or a Trusted Traveler Card (NEXUS, SENTRI, and FAST), or a Washington state enhanced driver’s license (EDL). The Department of State is already accepting applications for new passport cards and additional states and Canadian provinces will be issuing EDLs in the next several months, all of which the DHS said are options specifically designed for land and sea border use.

Beginning June 1, 2009, DHS will institute special provisions that allow school or other organized groups of children ages 18 and under who are U.S. or Canadian citizens to enter the U.S. with proof of citizenship alone.

Information on specific documentation requirements is available for U.S. citizens and for non-U.S. citizens here. The full text of the final rule is available as PDF. The DHS has also designated the enhanced driver’s license and identity document issued by Washington state as a travel document under the WHTI. Questions and answers on the WHTI final rule are available.

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