Today, the USICS promulgated an interim final rule, effective upon publication, that modifies the procedures for filing and processing H-1B petitions subject to the numerical limitations.

The Immigration and Nationality Act allocates 65,000 H-1B numbers annually, and a 2004 amendment to the law exempted from this limitation an additional 20,000 H-1B numbers for petitions filed on behalf of beneficiaries who have earned an advanced degree in the U.S. Last year, the USCIS received H-1B petitions totaling nearly twice the 65,000 cap. The USCIS also reports that the 20,000 cap has been exhausted earlier and earlier for each fiscal year since the cap exemption was added to the law.

The new rule:

• Changes from two days to five days the period of time during which cap-subject H-1Bs can be received to be included in any "lottery" that would occur if, as expected, the number of petitions exceeds the numerical limitation.
• Prohibits multiple filings from the same employer for the same employee, even if the filings are for different jobs. The one exception would be that related employers could file separate petitions for the same employee.
• Will result in the denial or revocation (without refund of fees) of any petition found to have been a multiple filing.
• Changes the lottery system so that the 20,000 U.S. advanced degree cap cases are selected first. If any advanced degree cases are left after that process, they would go into the overall 65,000 pool.
• States that no refunds will be made on cases where the filer incorrectly claims a cap exemption.

Each employer should act quickly to ensure they can obtain H-1B numbers for foreign workers.

Employers may contact our office for a free consultation.

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