Standard H-1B Cap Expected to Be Met on April 1

Similar to last year, the filing season for standard H-1B cap numbers is expected to end shortly after it begins on April 1, when U.S. Citizenship and Immigration Services (USCIS) will begin to accept petitions for H-1B employment in Fiscal Year (FY) 2009. Though the pool of H-1B numbers for holders of U.S. advanced degrees could be available beyond April 1, these numbers are also likely to be used up very quickly. Because of the short time frame, employers should plan ahead and gather all necessary case documents so that H-1B petitions can be filed timely and correctly on April 1.

The filing period for H-1B employment in Fiscal Year (FY) 2009 begins on Tuesday, April 1, 2008. U.S. Citizenship and Immigration Services (USCIS) is expected to receive enough petitions to reach the 65,000 standard H-1B cap on April 1 and the 20,000 pool of H-1B numbers for holders of U.S. advanced degrees on April 1 or shortly thereafter. If the agency receives more than enough petitions to meet the H-1B cap on the first day of filing, it will use a computerized lottery to select the petitions that will be accepted for processing; the lottery will include cases filed on both the first and second days of filing, as discussed below. Because cap numbers are likely to be used up very quickly, employers seeking to employ new workers in H-1B status for FY 2009 should plan ahead so that H-1B petitions can be filed timely and correctly.

When to File; How Cases Will Be Processed

It is highly likely that USCIS will receive enough filings to reach the standard H-1B quota on April 1 and the advanced-degree quota on April 1 or soon after. As noted above, if the cap is reached on the first day of the filing season, USCIS will use a computerized lottery to select the petitions that will be processed to completion. The lottery pool will include cases received on April 1 and 2; USCIS includes second-day receipts in the lottery so as not to disadvantage filers from locations where overnight delivery cannot be guaranteed. Cases not selected in the lottery will be rejected and returned.

H-1B cap cases should be put into overnight courier or express mail on Monday, March 31 for overnight delivery at USCIS Service Centers on Tuesday, April 1. As a practical matter, cases received on April 2 could be selected in USCIS’s cap lottery, but prudent employers will plan to file for April 1 delivery to ensure that petitions are received in time to be included in the selection process. Advanced degree cases should also be filed on April 1; though advanced-degree quota numbers could be available beyond April 1, they are also likely to be used up very quickly so prompt filing is recommended.

No case should be sent for delivery at USCIS before April 1. FY 2009 H-1B cap cases that arrive at USCIS before April 1 will be rejected.

Processing Delays Possible

This year, USCIS is once again expected to receive a very large number of H-1B petitions on the first day of the filing season. A high volume of filings is likely to result in processing and receipting delays and other problems. Last year, for example, USCIS did not consistently issue receipts or cash fee checks for H-1B cap cases, and it was difficult to determine definitively whether a case had been accepted for processing. In addition, there was a delay between the time the H-1B advanced degree quota was exhausted and the time that USCIS made an announcement that this quota was reached. As a result of the delayed announcement, employers and their immigration counsel unknowingly continued to file cases that were foreclosed by the cap. Similar problems could occur this year.

Petitioners should also be aware that USCIS could elect to suspend premium processing for H-1B filings at some point during the season. Last year, for example, the agency suspended premium processing on April 9, one week after the start of the filing period. The 15-day processing clock was started only after the agency had finished initial case intake and had run the cap selection lottery.

Duplicate H-1B Filings

Many employers have inquired about the possibility of filing duplicate H-1B petitions for a single foreign national, in hopes of increasing the chances of winning a cap number. In the coming weeks, USCIS is expected to issue a regulation that will prohibit duplicate filings. It is not yet clear whether the rule will prohibit multiple filings where more than one bona fide job opportunity exists. We will be closely monitoring the status of the forthcoming regulation and will issue future Client Alerts as more information becomes available.

Bachelor’s Degree Issues for Spring 2008 Graduates

To qualify for the H-1B category, a foreign national must possess a bachelor’s degree or its equivalent. USCIS requires H-1B beneficiaries to meet the requirements of the visa category – including possessing the degree or its equivalent – on the day that a petition is filed. This rule will affect many foreign nationals who have not completed their degree requirements in time for H-1B season. There may be situations, however, where a degree has not been officially awarded, but all coursework and examination requirements have been completed. In such instances, students should obtain confirmation from an authorized university official verifying that all work toward the degree has been completed.

In general, an H-1B petition should not be filed on behalf of an undergraduate who will not meet the requirements for a bachelor’s degree by April 1. Some prospective Spring 2008 graduates may be able to meet the degree requirement by using work experience in lieu of some or all formal education.

When a Master’s Degree Has Not Yet Been Awarded

To qualify for the pool of 20,000 H-1B numbers for holders of U.S. advanced degrees, a foreign national must possess a qualifying master’s or higher degree by the date the H-1B petition is filed. If the foreign national has completed all work towards the degree by April 1, including any required thesis or dissertation, and an authorized official of the university will provide a letter to that effect, the advanced-degree case can typically be filed on April 1. But if the foreign national has not completed his or her master’s degree requirements by April 1, a standard H-1B cap case should be filed, rather than an advanced degree case. Cases filed under the advanced-degree quota cannot rely on work experience or other qualifications as an alternative to the advanced-degree requirement.