3/26/2008 - USCIS Publishes H-1B Visa Interim Rule

In an effort to discourage multiple H-1B filings by the same employers for the same potential employees aimed at increasing the odds of being chosen in a lottery, USCIS has published a strict new rule in the March 24 edition of the Federal Register.

If USCIS detects more than one petition with both the same employer-petitioner and the same employee-beneficiary, both petitions will be denied (or revoked, if one or both were already approved) and filing fee will not be returned for either petition. USCIS will also retain filing fees and deny H-1B petitions if the petition was submitted with a false statement that the petition was exempt from the H-1B cap, but USCIS determines that it is not exempt after available cap-subject H-1Bs have been entirely depleted.

A more favorable aspect of the new rule is that H-1Bs will be accepted for inclusion in the lottery for the first five days of April, not only for the first two days as previous permitted (and as happened last year). Further, different companies within the same corporate umbrella (parents, subsidiaries, affiliates, etc.) can still file separate applications for the same individuals without running afoul of this new rule.

Last year, the entire general allotment of 65,000 H-1B visas was entirely used in these first two days (in fact, far more than double this number of applications was submitted), and USCIS resorted to a lottery to allocate the available visas. It is anticipated that an even greater number of applications will be competing for available H-1B visa this year, and that the additional 20,000 H-1Bs allotted to those with Master's degrees from U.S. schools will go almost as quickly (they lasted almost to the end of April last year).