AQUINO & LOEW

March 26, 2008

The United States Citizenship and Immigration Service (CIS) issued a new regulation on March 24, 2008, that affects the upcoming H-1B filing window.  Effective immediately, the new regulations extend the time period for petitions to qualify for the random lottery, alter the manner in which the random lottery is conducted, and prevent the filing of multiple same petitions.

As background, there are 65,000 H-1B visas available each fiscal year (October 1 to September 30), plus another 20,000 H-1B visas for those who have attained a US Master’s degree or higher.  For the 2008 fiscal year, the CIS announced that it had received enough applications to meet the 65,000 visa cap on the very first day of filing, which last year was April 2 since April 1 was a Sunday.  As well, last year the CIS reached the 20,000 visa cap for individuals with at least a Master’s degree by May 4.  It is anticipated that the visa cap for those with a Master’s degree or higher will likely be reached on the first few days of April.

Once the CIS has received enough applications to reach the 65,000 and 20,000 visa caps, the CIS no longer accepts any further H-1B petitions for processing.  Petitions that are received prior to the visa cap being reached are subjected to a random lottery.  Those chosen in the random lottery are processed, while those not chosen are rejected and returned back with the filing fees. 

Since the visa cap has been reached on April 1, the very first day of filing, individuals have been rushing to file their petitions on April 1.  This has resulted in logistical delivery problems for the CIS.  To avoid these logistical delivery problems, the CIS released the new regulation in order to spread out the delivery of petitions to its Service Centers.  Accordingly, under the new regulation, the CIS will accept for inclusion in the random lottery all petitions received on or before Monday, April 7, 2008. 

This extension of the available filing period is welcome news for those who are still preparing the H-1B petition.  Conversely, however, it will likely increase the number of petitions participating in the random lottery. 

Another change under the new regulation pertains to the manner in which the random lottery is conducted.  The regulation indicates that an initial lottery will be conducted for all those who are qualifying under the 20,000 Master’s degree visa cap.  Any of these petitions not chosen under that initial lottery will then be placed into the general lottery for the 65,000 visas.  Individuals with at least a US Master’s degree or higher will therefore have two opportunities to have their petition chosen under the random lottery for acceptance and processing.

The regulation also now prevents the filing of multiple petitions for the same individual by the same petitioner.  This prohibition is applicable even if the petitions involve different job positions.  The prohibition is intended to provide fair and equitable distribution of the H-1B visas by preventing individuals with the financial capacity to file multiple petitions, thereby increasing their chance of being picked in the random lottery.  Should multiple petitions be discovered, the regulation allows the CIS to deny or revoke all petitions without refunding the filing fees.

The new regulation should aid in administering the proper delivery of H-1B petitions to the CIS, as well as ensure that the random lottery is more fair and equitable.  Regardless, individuals must also continue to contact their Congressional representatives advocating for laws to increase the visa cap so that businesses, consumers and immigrants alike are not so detrimentally harmed due to the unavailability of H-1B visas for an entire year.  While these new regulations are a good band aid to the H-1B crisis, a real solution addressing the limited number of available visas needs to be made.  For now, however, individuals seeking to apply for an H-1B visa must ensure that they have skilled legal counsel so that all requirements and procedures are satisfied.