H-1B Visa: USCIS Interim Final H-1B Rules

The USCIS had just released the Interim Rules for H-1B visa applications.

There are a few very important changes made, that certainly benefit the thousands of H-1B Visa applicants.

Here’s the short version of the H-1B Visa Interim Rules:

  1. The same Employer cannot file multiple petitions.
  2. Last year, H-1B visa applications submitted during first 2 days were accepted and processed under the lottery system. This year, H-1B Visa applications submitted during first 5 days will be accepted.
  3. If more than 20,000 applications were to be received under the master’s degree quota, then the lottery system will be used to approve H-1B Visa and rest of the H-1B Visa applications will be used under the general 65,000 quota.

Here are several detailed updates from USCIS:

The U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee.

These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker.

To ensure a fair and orderly distribution of available H-1B visas, the USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

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, the U.S. Congress has set a limit of 65,000 for most H-1B workers.

Additionally, 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 cases requesting the educational exemption are counted toward the 65,000 cap.

Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled up and will reject further petitions subject to the cap.

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

8 Comments

  1. Raj on October 29, 2010 at 7:32 AM

    Hello,

    I got my H1B visa on Oct 2009 but still i couldnt go to US because of lack of support from my employer. What could i do in this situation? I have one more year for my H1B visa to expire. Is there any possibilities to go there or need to transfer my visa? am i eligible to renew my visa for another three years?

  2. Victor on May 26, 2010 at 12:17 PM

    Hi-

    Please help in answering to my below questions.

    1- I am holder of H1B Visa, I need to find finance jobs.

    2- I didnt travel to US once but if in case I find job there how do I move ahead for H1B transfer to the new company

    Thanks

  3. Dan on February 15, 2010 at 5:22 AM

    I filed H1B on April 2008. Still the status is "Request for Evidence". The consultancy with which I've filed the petition is saying that it is approved. But in the USCUS site, it is "Request for Evidence"

    Is there any situation that the site is not uptodate. But Iam waiting for long 1.5 years with spending 1 lakhs rupees to the conslutancy's hand.

    ——————————–

    Request for Evidence

    On August 26, 2008, we received your response to our request for evidence. This case is being processed at our VERMONT SERVICE CENTER location. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address or call our customer service center at 1-800-375-5283. We will notify you by mail when we make a decision or if we need something from you. You should expect to receive a written decision or written update within 60 days of the date we received your response unless fingerprint processing or an interview are standard parts of case processing and have not yet been completed, in which case you can use the processing time information on our website to estimate when this case will be done. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address or call our customer service center at 1-800-375-5283.

    ——————————

    Sonebody, pls advice

  4. Syavash on July 22, 2009 at 10:18 AM

    Hello,

    I have currently an H1_b Visa but it is close to end its 6 years. My employer has applied for my Labour certificate, to go through green card application. However, rumours of LAY offs are spread.

    I have following wquestions:

    1- I am a CANADIAN CITIZEN, if I get laid off Can I switch to TN visa with a new employer?

    What are my options?

    2- One lawyer told me I can stay in USA even after lay off under "out of status" as long as my H1-B date of expiration has not passed?

    3- I just read your website. I joined this company from another company under h1-b and did an h1-b transfer! at that time the lawyer of new company told me as long as they apply for my h1b transfer i can start working! So i started working and after few months got the approval of my h1-b!!!

    now you say it was illegal. what should i do not to be blamed of doing anything wrong!

    if i get laid off under what condition i can get unemployment insurance?

  5. DG on March 19, 2009 at 9:57 AM

    Hi,

    I am on OPT from 1st October 2008 and my OPT will expire on 30th September 2009. I was hired as a volunteer trainee consultant in a software firm so that I can learn new IT skills and later on join project in the company. I also worked part time for a month in other organization but that project completed. I am wondering if my visa status is maintained while I am still working as a volunteer on OPT. Will this volunteer kind of work helps or hinders when filing for H1b this year.

    What is the last date for filing H1b in 2009.

    Thank you very much. Looking forward to your valued response.

    Regards,

    DG

  6. Yvonne on March 16, 2009 at 6:47 AM

    I heard that the employees that have an application for HIB for 2009 cannot leave the country between March 30st and the day the results are published.

    I have a TN visa that expires until August 09, what would happened if I need to leave the country during this days? I am planning on coming back before my TN visa expires.

    I appreciate your advice,

  7. prat on May 15, 2008 at 6:48 AM

    I co-founded the Alternative Energy Research Organization a year ago and we even got our 501 C3 status does the cap allocation of 85000 (2009-2010) still apply to us applying for a H1B visa for a foreign national?

  8. Vera on May 14, 2008 at 8:41 AM

    Hi,

    I found this under the government website regarding the 90 days unemployment during 12- month OPT. Does it already take into effect?

    Please advise, thank you!

    Vera

    http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=a656a17547897c6880084c26f43cbcf2

    C. Related Changes to the OPT Requirements

    1. Changes to Post-Completion OPT Currently, students must apply for post-completion OPT prior to completing their course requirements. 8 CFR 214.2(f)(10)(ii)(A). This is inconsistent with other regulatory provisions allowing students to transfer, apply for a new degree program, or change to another nonimmigrant status during their 60-day post-completion departure preparation period. Problems also arise if students fail to complete their program after receiving authorization for post-completion OPT. Therefo re, this rule allows students to apply for post-completion OPT during the 60-day departure preparation period.

    2. Periods of Unemployment During OPT

    DHS regulations currently define the period of an F-1 student’s status as the time the student is pursuing a full course of study at an SEVP-certified school or engaging in authorized post-completion OPT. 8 CFR 214.2(f)(5). They do not specify how much time the student may be unemployed, making it difficult to determine when an unemployed student on post-completion OPT violates the requirements for remaining in F-1 status. As status during OPT is based on the premise that the F-1 student is working, the re must be a limit on unemployment, just as the F-1 student’s period in school is based on the premise that he is actually pursuing a full-time course of study, and there are limits on how often the student can reduce his course load. An F-1 student who drops out of school or does not pursue a full-time course of study loses status; an F-1 student with OPT who is unemployed for a significant period should similarly put his status in jeopardy. Therefore, this rule specifies an aggregate maximum allowed perio d of unemployment of 90 days for students on 12-month OPT. This maximum period increases by 30 days for F-1 students who have an approved 17-month OPT period. In addition to clarifying the student’s status, this measure allows time for job searches or a break when switching employers.

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