by Maria Sunantha Quibilan/Asianjournal.com
LOS ANGELES – US Citizenship and Immigration Services issued last week an interim final rule in the Federal Register prohibiting employers from filing multiple H-1B petitions for the same employee in a fiscal year.
The change was made in order to provide equal chance for companies filing H-1B petitions, which are subject to a congressionally mandated cap, to receive consideration for an H-1B worker. In order that available H-1B visas are fairly and systematically distributed, those multiple petitions filed by an employer for the same H-1B employee will be revoked or denied by USCIS and the filing fees submitted with duplicative petitions will not be refunded.
This rule does not inhibit related employers (e.g. a parent company and its subsidiary) from filing petitions for the same alien for different positions, based on a legitimate business need.
On April 1, 2008 , employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers. Additionally, the first 20,000 H-1B workers who have a US master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a US master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.
This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.
These changes to the H-1B filing process are an important part of the series of immigration and border security reforms to be undertaken by the Administration, as announced by President Bush in August last year.
The interim final rule becomes effective upon publication in the Federal Register. It may be accessed, along with additional information regarding the H-1B program, via the USCIS website at http://www.uscis.gov.