USCIS Announces Intern Rule on H-1B VISAS
Rule Modifies Petition Selection Process and Prohibits Multiple Filings
What is the H-1B visa program?
The H-1B visa program is used by U.S. businesses to employ foreign workers in
occupations that require theoretical and practical application of highly
specialized knowledge and a bachelor’s degree or higher (or its equivalent),
such as scientists, engineers, or computer programmers.
What is the purpose of the new rule?
The overall goal of the new rule is to promote equal opportunity for
prospective petitioners seeking visas for H-1B workers.
What are the specific modifications under the new rule?
- USCIS will now either deny or revoke multiple petitions filed by an
employer for the same H-1B worker.
- USCIS will not refund filing fees for duplicative or multiple H-1B
petitions.
- In years when USCIS implements the random selection process for
petitions, USCIS will include petitions in the random selection process that
are filed during the first five business days available for filing H-1B
petitions for a given fiscal year, rather than just the first two such days.
- If a petition incorrectly indicates that it is exempt from any of the
H-1B numerical limits, the petition will be denied if no H-1B visa numbers
are available and the filing fees will not be returned.
Do the new rules referencing multiple filings on behalf of one worker
apply to a parent company and its affiliated entities?
The rule does not prevent related employers (such as a parent company and its
subsidiary) from filing petitions on behalf of the same alien for different
positions, based on legitimate business need.
How long did it take for the prior FY2008 congressionally mandated H-1B
caps to be reached?
April 2, 2007 was the first day H-1B petitions could be received for Fiscal
Year 2008. On that day USCIS received enough petitions to fill the 65,000 cap
for Fiscal Year 2008. On April 30, 2007, USCIS received enough petitions to fill
the 20,000 advanced degree cap.
What are the FY2009 congressionally mandated H-1B caps?
By law, the congressionally mandated cap is 65,000 for new H-1B visas per
fiscal year, subject tocertain limited exceptions. The advanced degree exemption
is 20,000 H-1B visas.
When can employers file an H-1B petition for fiscal year 2009?
April 1, 2008 is the first day petitions may be received for an October 1,
2008 start date.
What happens when the cap is reached?
When it is determined that the numerical limitations have been reached, USCIS
employs a random selection process to choose among the petitions received on the
“final receipt date.” If the “final receipt date” falls within any one of the
first five business days, the random selection will be run using all the
cap-subject petitions received during those five days.
If the limits are reached during that period:
- 20,000 Reached - USCIS randomly selects from these petitions ahead of
selection for the 65,000 limit.
- Over 20,000 Not Selected - Considered with other H-1B petitions in the
random selection for the 65,000 limit.
- Under 20,000 – Ongoing approvals counted toward the 20,000 cap until the
limit is reached.
If DHS finds out that an employer is filing multiple petitions for the
same potential employee, will DHS disqualify that employer entirely?
No. USCIS will deny all petitions filed by an employer for the same H-1B
worker if more than one is filing is discovered. If duplicate or multiple
petitions | 
