The U.S. Citizenship & Immigration Services (“USCIS”) of the Department of Homeland Security will start accepting on April 1, 2008, petitions for new employment in H-1B status for the 2009 federal fiscal year which begins on October 1, 2008. Last year, the USCIS received more than 133,000 petitions, over twice the number of visas available under the annual cap, on the first day of the 2008 federal fiscal year filing season. The government, therefore, implemented a computerized random selection process for all filings received on that first day and the following day to determine which petitions would be processed. The USCIS anticipates that this year it will have to follow the same procedure.
Under current law, the number of H-1B visas that can be issued for new employment in a federal fiscal year is capped at 58,200 plus any of 6,800 H-1B visas set aside for Chilean and Singaporean citizens that were not used during the prior fiscal year. For the 2008 federal fiscal year, USCIS added 5,800 unused Chilean/Singaporean visas. In addition, 20,000 H-1B petitions for foreign nationals with U.S. earned Master’s or higher degrees are annually exempted from the cap. Last year, this 20,000 limit was reached on April 30, 2007.
There are various categories of H-1B petitions that are not subject to the cap and employers can file these petitions at any time of the year. These categories include petitions to:
- Request new employment by a “cap-exempt” employer, an institution of higher education or related or affiliated nonprofit entity or a nonprofit research organization or governmental research organization;
- Extend the time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers (unless the change is from a cap-exempt to a cap-subject employer); and
- Allow current H-1B workers to work concurrently under a new H-1B petition.
A foreign national who has already been counted against the cap within the previous six years will not be subject to it again unless he or she is seeking a change of employment from a cap-exempt to a cap-subject employer or he or she has left the United States for more than a year and on that basis is eligible for the maximum six-year period of authorized stay in H-1B status. In December of 2006, the USCIS issued a memorandum which effectively created another exemption to the H-1B cap. The USCIS made clear that it would not consider an individual subject to the H-1B cap if the individual worked in H-1B status for less than the six-year maximum, has been outside the United States for a year or more, and is now returning to work for the remainder of his or her unused six years rather than seeking a new six-year term.
The USCIS has recently posted on its web page (www.uscis.gov) “Helpful Hints” and answers to frequently asked questions about H-1B filings. The agency’s advice includes the following:
- Clearly label all H-1B cap cases in red ink on the top margin of the Form I-129 petition using the following codes: Reg. Cap (for all cases except the immediately following three categories); C/S Cap (Chile/Singapore H-1B1s); U.S. Master’s (beneficiary with U.S. Master’s or higher degree); or Exempt (for cap-exempt employers).
- Fill out Form I 129, the H classification supplement and the H-1B data collection and filing fee exemption supplement correctly, consistently and completely, signing all forms in blue ink.
- Submit the correct fees as shown on the form instructions (with separate checks for each preferable): $320 base filing fee; ACWIA fee of $750 for employers with 1 to 25 full time equivalent employees and $1,500 for employers with 26 or more full time equivalent employees unless exempt; $500 fraud fee (not applicable to Chile/Singapore H-1B1 cases); and $1,000 Premium Processing fee for those who want to expedite the petition.
- Send only one petition per envelope, though several envelopes may be mailed together in one mailing package.
- Submit H-1B petition to correct USCIS Service Center. All petitions should be sent to either California or Vermont, depending on the place of intended employment for the H-1B worker. All cap-exempt petitions should be submitted to the California Service Center.
The USCIS has recently suggested that it may be releasing a regulation to deal with the following:
- Multiple filings. While both the USCIS and the Immigration bar disfavor duplicate H-1B filings for the same worker, there is no explicit prohibition in the law at the present time. If such a prohibition were enacted, it is unclear how far it would extend. For example, would the USCIS allow multiple filings for the same worker if the filings were made by different employers? Would it allow multiple filings by a single employer for multiple positions?
- Pre-registration. The USCIS has hinted that it would adopt a procedure by which employers would first file a simplified H-1B petition requesting a quota number and then, if the filing were chosen in the H-1B cap lottery, a more complete H-1B petition. This is not the current law and it seems unlikely that the USCIS will be able to implement such a procedure by April 1, 2008.