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Dinsmore | Immigration
Mar 26, 2008

USCIS Announces Interim Rule on H-1B Visa Program

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. 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 and reject further petitions subject to the cap.

On March 24, 2008, U.S. Citizenship and Immigration Services (USCIS) published a regulation (an “interim final rule”) in the Federal Register. The regulation prohibits employers from filing multiple H-1B petitions for the same employee and authorizes USCIS to deny or revoke multiple petitions filed by an employer for the same H-1B worker and to keep the filing fees submitted with multiple or duplicative petitions.

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

To read USCIS’ interim final rule, please visit

To read USCIS’ “Questions and Answers” about these changes, please click here.


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