H-1B WRAP UP FOR FISCAL YEAR 2009

H-1B WRAP UP FOR FISCAL YEAR 2009

In the past several years, the H-1B cap has been reached before the start of the fiscal year. Last year, over 119,000 petitions were filed on April 2 and April 3, forcing USCIS to conduct a computer generated random lottery to select the cap-subject petitions. The advanced degree cap was reached on April 30, 2007. This year, USCIS issued an interim final rule on March 19, 2008, with changes to the H-1B Program to make the lottery process more equitable. The key points in the Interim Rule were:

  • Allowing H-1B cap-subject petitions filing in the first 5 days to be included in the lottery
  • The prohibition of multiple filings from the same employer for the same employee, even if the filings were for different jobs
  • Denial or revocation of any petition found to have been a multiple filing
  • The lottery for the advanced degree cap cases would be held first, then any unchoosen advanced degree petitions would fall into the overall 65,000 pool.

On April 8, 2008, USCIS announced that it had received enough H-1B petitions to meet the advanced degree and general cap. On April 10, 2008, USCIS announced preliminarily that it had received 163,000 regular H-1B petitions and over 31,200 advanced degree H-1B petitions. On April 14, 2008, USCIS announced that it had conducted the computer-generated random selection (the lottery), and that receipt notice for the selected petitions would be received by June 2, 2008. On June 12, 2008, USCIS announced that all receipts had been issued, and that rejections were being mailed out. There are no petitions on the “wait list” as previously announced there might be.

The silver lining in this mess is that USCIS expanded the Cap-Gap relief for all F-1 students with a pending H-1B petition, as part of the Interim Final Rule on Extending OPT by 17 months for students with STEM degrees. (See article on F-1 OPT Extension) The cap-gap relief came in the form of an automatic extension for F-1 status, including employment authorization, to October 1, if a timely change of status H-1B petition was filed. This Cap Gap rule is a permanent solution to the predicament F-1 students were left in when their F-1 status expired before the new fiscal year.