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Employers to File FY 2009 H-1B Petitions on April 1; USCIS Publishes Interim Rule Prohibiting Multiple H-1B Petitions for Same Employee


On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year (FY) 2009 employment starting on October 1, 2008. For FY 2009, Congress has once again set a tight limit of 65,000 for most H-1B workers, and the supply is expected to be exhausted immediately. Last year, the cap was reached in one day.

USCIS published an interim final rule, effective March 24, 2008, that prohibits employers from filing multiple H-1B petitions for the same employee. USCIS said the changes “will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker.” 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 duplicative petitions. USCIS noted that the interim rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same worker for different positions, based on a legitimate business need.

The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS announces that the cap has been filled and rejects further petitions subject to the cap.

The rule stipulates that if USCIS determines that the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during that time period. If the 20,000 advanced-degree limit is reached during the first five business days, USCIS will randomly select from those petitions before conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random process will be considered along with the other H-1B petitions in the random selection for the 65,000 limit. 
The interim rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned. Under current procedures, which are not changed by this rule, once U.S. Citizenship and Immigration Services (USCIS) receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

As noted above, H-1B availability is likely to be exhausted immediately. Contact your Alliance of Business Immigration Lawyers member for guidance in particular cases.

The interim final rule is available. A USCIS press release announcing the interim rule is available as PDF. A fact sheet with additional details is available. Questions and answers are also available.

In other H-1B news, the March 2008 edition of Business Week noted that two outsourcing companies based in Bangalore, India, top the list of approved H-1B visa petitions in 2007: Infosys Technologies (4,559 visas) and Wipro (2,567 visas). Six of the top 10 H-1B visa recipients are based in India, and Indian outsourcers received nearly 80 percent of the visas approved for the top 10 participants in the H-1B program. Infosys has 88,000 workers worldwide, with 9,000 of those in the U.S., including 7,500 H-1Bs.

Bill Gates testified on March 12, 2008, before the House of Representatives’ Committee on Science and Technology about the “gathering threat to U.S. preeminence in science and technology innovation.” He proposed a four-part plan, including revamping immigration rules for highly skilled workers so that U.S. companies can attract and retain the world’s best scientific talent. As a result of an artificially low H-1B cap and “counterproductive immigration policies,” he said, many U.S. firms, including Microsoft, have been forced to locate staff in countries that welcome skilled foreign workers to do work that otherwise could have been done in the U.S. Mr. Gates said that an increase in the number of H-1B visas likely would increase employment of U.S. nationals as well, citing a study of technology companies in the S&P 500 that found that for every H-1B visa requested, leading U.S. technology companies increased their overall employment by five workers.

Mr. Gates’s testimony before the House committee is available for download as PDF.

A policy brief on H-1B visas and job creation by the National Foundation for American Policy (NFAP), which notes that hiring H-1B visa holders is associated with increases in employment at U.S. technology companies, is available. An NFAP policy brief on job openings and the need for skilled labor in the U.S. economy is at http://www.nfap.com/pdf/080311talentsrc.pdf.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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