Labor Immigration Law

In a press release dated March 19, 2008, the USCIS announced that it has sent for publication in the Federal Register interim rule that provide some useful guidance for foreign nationals seeking to obtain H-1B visa in April.

The new rule prohibits employers from filing multiple petitions on behalf of the same employee. This rule is intended to ensure that all companies who file a petition for a foreign worker have an equal chance to obtain approval. According to the rule, 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 duplicate petitions. However, the rule does not prevent related employers (e.g. parent company and its subsidiary) from filing petitions on behalf of the same employee for different positions, based on a legitimate business need.

The rule also outlines the method of counting the cap-exempt U.S. advanced degree H-1B petitions. As many of our clients know, for Fiscal Year (FY) 2009, Congress has set a limit of 65,000 for most H-1B visas. The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Once USCIS receives 20,000 advanced degree petitions, all subsequent cap-exempt cases are counted towards the cap.

The rule also expands the window for receipt of H-1B petitions which will be included in the lottery in case the H-1B cap is met within the first five business days after April 1. The new window is five business days after April 1.

Finally, the rule makes it clear that USCIS will deny petitions that incorrectly claim a cap exemption and the filing fees will not be returned.