Special Immigration Alert: USCIS Announces Interim Final Rule on H-1B Visas

On March 19, 2008, the U.S. Citizenship and Immigration Services ("USCIS") issued an Interim Final Rule (the "Rule") that provides additional guidance regarding the filing of H-1B petitions for the 2009 quota.

The Rule was issued as employers marshal their resources to meet the filing deadlines imposed by law for new H-1B petitions. Effective April 1, 2008, employers are allowed to file H-1B petitions to request H-1B workers for fiscal year 2009. If their petitions are approved, these H-1B workers will be able to begin employment on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers with bachelor's degrees or the equivalent ("Regular cases"). The first 20,000 H-1B petitions for workers who hold a U.S. master's degree or higher ("Master's cases") are exempt from this limit.

The Rule forbids employers from filing multiple H-1B petitions for the same employee. The USCIS advises that it will deny or revoke multiple petitions filed by an employer for the same H-1B worker, and will not refund the filing fees. Nothing in this rule, however, prohibits related employers, such as a parent company and its subsidiary, from filing separate petitions for the same alien for different positions if there is a legitimate business justification for the multiple filings.

The Rule also advises the public of the random lottery procedure the USCIS will use if it receives more petitions than the quota allows. If the number of H-1B petitions received during the first five days of April exceeds the quota, the USCIS first will determine if the number of Master's cases exceeds the 20,000 statutory limit. If so, they first will select 20,000 on a random basis. Then the balance will be added to the group of petitions subject to lottery selection from the remaining 65,000 quota.

Finally, the Rule warns that the USCIS will deny any petitions that incorrectly claim an exemption from any H-1B quota limits, and the filing fees will not be returned. The interim final Rule became effective on March 19, 2008. Additional information about the Rule can be obtained from the USCIS web site at: www.uscis.gov.