(March 27, 2008) Employers may file only one petition for an H-1B visa for a single employee in a fiscal year under an interim final rule issued by the U.S. Citizenship and Immigration Service (USCIS).

U.S. businesses use the H-1B visa program to employ foreign workers in occupations that require theoretical and practical application of highly specialized knowledge and a bachelor’s degree or higher (or its equivalent) - positions such as scientists, engineers or computer programmers.

The change to prohibit the filing of more than one H-1B visa petition per employee in a fiscal year is intended to promote a fair and systematic process for H-1B petitioners. This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker.

This rule does not preclude related employers, such as a parent company and its subsidiary, from filing petitions on behalf of the same alien for different positions, based on a legitimate business need.

2009 Fiscal Year

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. In addition, the first 20,000 H-1B workers who have a U.S. 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 U.S. master’s degree or higher, all other requests for the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce the cap has been filled and reject further petitions subject to the cap.

When it is determined that the numerical limitations have been reached, USCIS employs a random process to choose among the petitions received on the “final receipt date.” It the “final receipt date” falls within any one of the first five businesses days, the random selection will be run using the all cap-subject petitions received during those five days.

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 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.

The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned.

Current H-1B Workers

Petitions filed on behalf of current H-1B workers do not count toward the congressionally mandated H-1B cap. Accordingly, this rule does not affect USCIS processing of petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change from one cap-subject position to a different cap- subject position with a different employer; or
• Allow current H-1B workers to work concurrently in a second H-1B position.

This interim final rule can be viewed, along with additional information on this rule and the H-1B program, at the UCSIS website at www.uscis.gov.

Staff Contact: Marti Fisher

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