Preparing for FY 2008 H-1B Filings

U.S. Citizenship and Immigration Services (USCIS) will begin to accept advance filings of H-1B cases for employment in Fiscal Year (FY) 2008 on April 2, 2007, the first business day of the filing season.  It is expected that FY 2008 H-1B numbers will be very rapidly used – perhaps within the opening week of the filing period.  Given these expectations, employers should begin planning as soon as possible to ensure that new H-1B employees will be able to begin work during the forthcoming fiscal year.  Employers should also prepare for possible processing changes as USCIS begins to plan for the anticipated surge of April 2 filings.

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Monday, April 2, 2007 marks the first business day of the filing season for H-1B employment in Fiscal Year (FY) 2008.  As of that date, U.S. Citizenship and Immigration Services (USCIS) will begin to accept advance filings of H-1B cases with employment start dates in fiscal 2008, which begins on October 1, 2007.  FY 2008 H-1B numbers are expected to be used at an unprecedented rate, with the possibility that standard H-1B numbers could be exhausted in the first week of the filing season.  Indeed, some immigration experts have predicted that USCIS could receive sufficient numbers of cap-subject filings to meet the numerical quota on the first day of the filing season.  Advanced degree numbers are also expected to be used rapidly, though possibly at a slightly slower rate, because of the academic calendar and the typical completion of degree requirements in May or June.

Given these expectations, employers should begin their H-1B planning as soon as possible, and consider submitting petitions as early in the filing season as possible to ensure that new H-1B employees will be able to begin to work during the next fiscal year.  Employers also should be aware of several important H-1B processing considerations, discussed below.

Potential H1-B processing slowdowns and other problems.

The projected high demand for FY 2008 H-1B numbers will likely have an effect on the processing of cases at USCIS.  Employers will recall that the FY 2007 H-1B filing season, which to date was the busiest on record at USCIS, was fraught with problems.  Because of the high volume of filings last year, the agency experienced data entry and processing slowdowns that resulted in the issuance of misleading cap statistics, and a six-day lag between the date that the FY 2007 cap was actually reached and the date that the agency’s cap exhaustion announcement was made.  As a result, many employers continued to expend resources on preparing and filing H-1B cases in reliance on the misleading numbers and the delayed cap announcement.  H-1B petitioners should be prepared for the possibility of similar problems this year.  FRAGOMEN and the American Council on International Personnel (ACIP) are urging USCIS to prepare adequately for the even higher volume of filings expected this year, and will be monitoring H-1B processing closely.

H-1B Filing locations and dates.

USCIS officials currently expect that all FY 2008 H-1B cases will be filed at the Vermont Service Center.  However, as USCIS begins to plan in earnest for the opening filing date, it remains possible that it could alter filing procedures and locations, in order to manage its workload.  As we have reported previously, USCIS has for some time been expected to inaugurate the third phase of its bispecialization program, under which “sister” service centers would divide cases both geographically and according to case type. The agency has not yet indicated when the third phase will be implemented, but employers are reminded that USCIS introduced the first phase of bispecialization in late March 2006, just before the opening of the FY 2007 H-1B filing season.

Employers should also be aware of acceptable filing and receipt dates for FY 2008 H-1B cases.    As we have reported previously, H-1B filing season normally begins on April 1 of each year – six months before the October 1 commencement of the subsequent fiscal year.  This year, April 1 falls on a Sunday.  It is generally recommended that FY 2008 cases be sent no later than Friday, March 30, or Saturday, March 31, for next business day delivery on April 2, 2007.  USCIS officials have indicated that cases filed over that weekend – i.e., sent by mail or courier for delivery on Saturday, March 31 – will likely be processed and receipted as if received on April 2 and will not be advantaged over those delivered on April 2. FY 2008 H-1B cases that arrive on Friday, March 30, 2007 or earlier will be rejected because they fall outside the six-month advance filing window.

Use of premium processing for H1B Filing

USCIS officials have consistently stated that use of the premium processing service confers no benefit in terms of capturing an H-1B number, because cap cases are counted as they “come in the door” – i.e., as they are receipted by the Service Center.  Many employers nonetheless have chosen to use premium processing during the H-1B filing season for its enhanced customer service, the fact that filing receipts are issued more quickly, and the certainty that a case has been approved even though employment will not commence for several months. There may also be specific factual circumstances in which a rapid adjudication is preferable, such as cases involving F-1 students who are changing status to H-1B and who may be contemplating summer travel outside the United States before H-1B employment begins.

Employers considering the use of premium processing should discuss the pros and cons of the service, bearing in mind that USCIS may exercise its authority to alter premium processing procedures in order to manage its workload.   Though the agency has not yet issued guidelines for the upcoming H-1B filing season, there is a possibility that USCIS could suspend H-1B premium service because of the expected high volume of filings around April 2.   If a suspension is ordered, premium processing would likely be revived after the initial filing rush subsides.

The H1B cap lottery.

If USCIS receives sufficient H-1B filings to meet the cap on the first day of the filing season, special cap selection procedures will take effect.   For the past several fiscal years, USCIS has employed a lottery system for granting H-1B numbers when the agency has received sufficient numbers of cases to meet the numerical cap.  USCIS uses a computerized random selection method for any petition received on the “final receipt date” — i.e., the date on which USCIS has determined that sufficient petitions will be received to exhaust that fiscal year’s cap. The process selects the exact number of petitions from that date’s receipts that are needed to fulfill the cap. Petitions that are received on the final receipt date but that are not randomly selected are rejected. Note that if the cap is reached on the first day on which filings can be made – as some have predicted for FY 2008 – the random selection process will be applied to filings received on the first day and on the following day, so as not to disadvantage petitioners filing from areas for which overnight delivery cannot be guaranteed.