H1B Update on Cap-Subject Petitions : June 2008
Posted Jun 10, 2008
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The USCIS has begun returning H1B cases that were not selected as part of the lottery for FY2009 cap numbers. It was announced that they would do so starting the week of June 12, 2008, and such cases started arriving at the Murthy Law Firm on June 16, 2008. This should end any uncertainty and, unfortunately, any lingering hope for foreign nationals who were yet to receive notification regarding the H1B petitions filed on their behalf.
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H1B Receipts Issued
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The USCIS announcement indicates that receipt notices have been issued for all H1B cases selected in the lottery, except for those being reviewed for potential duplicate filings. All receipts were mailed as of May 24, 2008. It should be noted that some H1B cap-subject cases have already been adjudicated. Most of these selected the premium-processing option for faster review and decision.
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USCIS Reviewing Duplicate Filings
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While it was permissible for multiple employers to file H1B petitions for a single beneficiary, it was not permissible for a single employer to file multiple petitions for the same beneficiary. The USCIS has identified approximately 500 petitions that are believed to violate this rule. These cases are being reviewed carefully, as there are some justifiable instances of second submissions. Such justifications include situations in which the initial delivery could not be confirmed or where the first filing was sent to the incorrect USCIS service center. These cases will be accepted if an explanation was provided with the second filing.
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Reserve Cases to be Rejected Now
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A small number of cases was selected by the USCIS as a reserve to be used if there were not enough approvable cases in the initial lottery selection group. These reserve cases will not be needed and, thus, will be rejected.
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Some Relief
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Not being selected is a significant disappointment and, potentially, a career set back for many individuals. It also works to the detriment of employers who are in need of the services of cap-subject workers. Some find relief in the form of extensions of employment authorization (EADs) based upon having earned degrees in the fields of science, technology, engineering, or math (STEM). This was reported in our April 9, 2008 NewsFlash, F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis. Others will need to make alternative arrangements to continue their studies or pursue other options, while some may choose to depart the United States.
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Conclusion
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This year's H1B cap filings again demonstrate that the cap limits are insufficient to meet the needs of U.S. employers. Despite the helpful, positive implementation of OPT extensions for STEM graduates and "cap-gap" relief, which has bridged the gap from F-1 to H1B status for recent graduates, the problem is yet to be addressed satisfactorily. Congress needs to increase the number of available H1B visas so that the United States may remain competitive in the global marketplace.