In today’s Federal Register, USCIS published an interim rule governing when a petitioner will be able to file more than one H-1B petition on behalf of a particular prospective foreign national employee.
The rule is in response to the annual quota on the number of new H-1B being reached on the first day of filing, and includes both a limit on the number of H-1B petitions that may be filed by a particular petitioner on behalf of a particular employee, and also a new method of applying the “supplemental cap” of 20,000 H-1Bs for persons with Master’s or higher degrees from U.S. universities.
The H-1B Caps
By way of background, the number of new H-1B nonimmigrants for the coming 2009 fiscal year (October 1, 2008 – September 30, 2009, “FY09”) is expected to be exceeded the first day such petitions can be filed (April 1, 2008 – six months in advance of the effective date of the petition). Last year, more than twice as many petitions were filed as the approximately 63,000 petitions available. This year, the “supplemental cap” of 20,000 additional H-1Bs for new employees who have earned a Master’s or higher degree from a U.S. college or university is also expected to be reached on April 1.
Once the caps are reached, employers (other than cap-exempt institutions, such as universities) cannot file H-1B petitions for employees who have not previously held H-1B status with a start date in FY09 – in other words, with a start date earlier than October 1, 2009 (the first date of the 2010 cap). Employers also cannot file petitions for employees to switch their H-1B status from a cap-exempt institution to a cap-subject institution with a requested start date during FY09 once the cap has been reached.
What Happens When the Cap is Reached the First Day?
The regulations provide that, in situations where the cap is reached, the petitions received before the “final receipt date” (the day on which USCIS received the petition which reaches the cap) will be accepted, the petitions received after the “final receipt date” will be rejected, and the petitions received on the “final receipt date” will be subject to a random selection process – for example, if there were 100 H-1B numbers available on April 13, and 300 H-1Bs arrived on April 13, then all cases received April 12 would be accepted, all cases received April 14 would be rejected, and USCIS would randomly pick 100 of the 300 H-1Bs received on April 13 to process and would reject the remaining 200.
If the cap is reached in any of the first five business days, the new rule provides that USCIS will conduct its random selection lottery on all cases received within the first five business days. This rule change was meant to increase fairness to petitioners who opted to mail in their petitions, while creating a five-day window to ease the USCIS’s burden in processing hundreds of thousands of petitions expected in the April 1 timeframe.
How is USCIS Limiting Petitioners from Multiple Filings?
USCIS believes that only about 500 “duplicate” petitions were filed in last year’s cap by petitioners seeking to get more than one entry into the random petition selection process, but is concerned that significantly larger numbers of petitioners were prepared to file multiple petitions this year. Therefore, it has included in this regulation, for the first time ever, a prohibition on an employer filing more than one petition on behalf of the same employee.
The new rule provides that filing more than one H-1B petition by an employer on behalf of the same employee in the same fiscal year (except for petitions such as amendments and extensions, where the cap is not relevant) will result in denial of all the petitions by the employer on behalf of that employee. This rule reaches both multiple petitions for the same employee for the same position (i.e. true “duplicate” petitions) and multiple petitions for the same employee for multiple alternative positions.
What Multiple Petitions Will NOT Be Limited by the Interim Rule?
USCIS has not limited all possibility that multiple filings might be made on behalf of certain employees. USCIS notes that multiple employers affiliated with each other (for example, a parent company and its subsidiaries in several states) may each file a single H-1B petition. USCIS has limited the ability of a company with multiple subsidiaries to “game the system” by requiring each subsidiary to be able to document that it has a “legitimate business need” to employ the H-1B employee independently. If USCIS discovers that multiple petitions were selected in the lottery for the same employee filed by related companies, it will request further evidence (or issue a notice of intent to revoke, if the petition has already been approved) asking the employer to prove that a bona fide job offer exists both at the company filing the questioned petition, and at all of the other, related companies.
The rule does not address the possibility that an employer may simply identify more prospective employees than it will likely need, and file multiple petitions for multiple employees. The USCIS regulation also does nothing to prevent an employee from requesting multiple employers to file petitions on behalf of the employee.
What Changes has the Rule Made With Regard to the “U.S. Master’s Cap”?
Congress intended the 20,000 H-1B visas for person who earned a Master’s or higher degree at a U.S. university to be an additional or supplemental cap, and USCIS has amended the procedure it will use to count the cases subject to the 20,000 supplemental cap. Previously, USCIS required all persons who had earned a Master’s or higher degree to file in the “Master’s cap,” while saving the “lottery” of the regular H-1B cap for people who did not qualify for the Master’s degree cap.
The new rule provides that if, as expected, more than 20,000 petitions subject to the “Master’s cap” are received during the first five business days of the fiscal year, a random selection process will first be conducted for the cases subject to the Master’s cap, and any cases not selected for the Master’s cap will be added to the other H-1B petitions received. This new methodology makes the 20,000 cap a true supplement to the basic cap, in that U.S. Master’s degree holders will first have a chance to receive a “Master’s cap” number, and if not selected, will receive at least some of the basic cap H-1B numbers.
What Changes has USCIS Made For Petitions Claiming “Cap Exemption”?
USCIS has taken the opportunity in this rulemaking to change the procedure it uses in handling cases claiming a “cap exemption” after the H-1B numbers have been exhausted for the year. Previously, if a petitioner claimed that it was exempt from the H-1B cap (for example, by claiming that it was a nonprofit organization “affiliated with” a university), and USCIS disagreed, the petition would be rejected and filing fees would be returned to the petitioner. Under the new rule, if USCIS does not agree that the petitioner should be considered “cap exempt,” they will deny the petition and keep the filing fees (though the petitioner would still have a right to appeal the denial).
For further information about the effect of the new rule on your company’s H-1B filing strategy, please contact the Firm, and one of our staff will assist you.