News Updates

Change in H-1B Procedures Anticipated Imminently

What do we need less than 2 weeks prior to the April 1st filing deadline?  That's right -- you guessed it -- a change in the regulations.

This update contains important information about a possible new strategy which could increase your employee's chances of obtaining an H-1B under this year's quota.  This strategy is based on a regulation regarding separate filings for the same employee, which we anticipate will be published prior to April 1.  However, by the time the regulation is published it may very well be too late to benefit from the strategy.  For this reason, we are advising you of the option now.  However, we must stress that the information below is the best available to date, but it may change in the near future.  We will keep you posted as new developments arise.

We had previously notified you about the limited number of H-1B visa numbers for USCIS fiscal year 2009 which begins on October 1, 2008.  For all employers wishing to file a cap-subject H-1B petition we encouraged you to open the cases early since employers are eligible to file six months in advance, or April 1, 2008.  Last year the Regular Cap (excluding those numbers set aside for Singapore and Chile) was reached on the first day of filing.  The additional 20,000 cap numbers available for individuals with a U.S. Master's degree or higher was reached on April 30, 2007.   This year it is expected that the Regular Cap will be reached on the first day of filing and that it is possible that the additional cap numbers for individuals with a U.S. Master's degree or higher may also be reached.  If the cap is reached on the first day, the USCIS will enter cases filed on the first and second day of filing (April 1 and April 2) in a random lottery to determine who will receive an H-1B visa number this year.

USCIS has instructed that petitions subject to the H-1B cap should be marked as "Regular Cap" or "U.S. Master's Cap" so that they can separate the filings for counting purposes.  If a person does not receive a cap number, an employer will not be able to sponsor the individual again for an H-1B until federal fiscal year 2010,  which begins on October 1, 2009. 

In order to be as fair as possible to all applicants, USCIS will not accept duplicate filings designed to increase one's chances of being selected for a visa in the lottery.   In fact, those who file duplicate petitions for the same individual risk having both cases disqualified from entry in the lottery.  We expect that USCIS will publish a regulation shortly which will define what constitutes a duplicate filing and prohibit such filings.   Although the regulation has not yet been published, based on liaison meetings and discussions between The American Immigration Lawyers Association (AILA) and USCIS, it is our understanding that a petition filed under both the U.S. Master's Cap and Regular Cap for the same individual will not be considered a duplicate filing.  

Given the above, if an employer is petitioning on behalf of an employee who holds a U.S. Master's degree or higher, under the current rules it is possible to file two petitions for the same individual -- one requesting a visa number under the U.S. Master's Cap and one requesting a visa number under the regular Regular Cap, without such filings being considered impermissible duplicate filings.  Filing under both the U.S. Master's Cap and Regular Cap may increase an individual's chance of receiving a cap number in the event that the U.S. Master's Cap is reached in the first two days of filing.   

If an employer files a U.S. Master's Cap case and Regular Cap case for the same individual, it is possible that both cases will receive cap numbers.  The USCIS will not refund any filing fees for a case that receives a cap number, even if the individual receives two cap numbers.  Additionally, if both caps are reached in the first two days of filing, the USCIS will conduct a random lottery for the U.S. Master's Cap and Regular Cap to determine which petitions will receive cap numbers.  If this occurs, an individual may not receive a cap number even though they were sponsored for both the U.S. Master's Cap and Regular Cap.      

If an employer authorizes us to file two cases for the same person (U.S. Master's Cap & Regular Cap), the legal fee for the second case will be 50% of the legal fee for the first H-1B  petition.  The USCIS filing fees will be the same for both petitions.  Please refer to our Immigration Updates sent on February 14, 2008, and March 6, 2008 for a breakdown of all H-1B legal and filing fees.  

 If you have already opened a Master's cap-subject case and wish to file a second petition under the Bachelor's cap,  please notify the responsible attorney.  If you are opening a new case via intake please note whether  the company wishes to file two cases pursuant to the U.S. Master's Cap and Regular Cap.  As with single H-1B filings, please note that by regulation all H-1B related costs must be borne by the employer. 

Again, the option discussed above for filing separate H-1B petitions for the same individual under both the Bachelor's and the Master's cap is currently available.  However, the USCIS is currently reviewing this policy and may decide in the coming weeks that it is no longer allowable.  We want to alert our clients to this filing option but we also want to stress that this option is under review and may change in the near future.  At this point we are not recommending the separate filings; rather we are providing the latest information to ensure you are completely apprised of your options.

Legislative Update

Two bills were introduced last week to raise the H-1B visa cap. They follow Microsoft Corp. Chairman Bill Gates' visit to Washington and his push for a H-1B cap increase.  U.S. Rep. Lamar Smith (R-Texas) introduced legislation Friday that would retroactively increase the 2008 visa cap to 195,000, as well as set that level for the fiscal year, 2009, that begins Oct. 1.    Gabrielle Giffords (D-Arz.) introduced legislation the same week to increase the cap to 130,000 a year. The current cap is set at 65,000, with an additional 20,000 for holders of advance degrees. 

We will alert you should any legislative changes materialize.

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