The new H-1B Cap regulation is fairly straightforward, as summarized in our earlier post. That said, after further analysis of the new H-1B Cap regulation, here are some additional thoughts:
Multiple Filings
USCIS indicated they found approximately 500 instances of multiple filings last year. USCIS will now reject all duplicative petitions from employers who file more than one application for the same individual, even for different positions. The employer's filing fees will not be returned. If the duplicative filings are not discovered by USCIS until after the random selection process, or even after approval, USCIS can reject/revoke all duplicative petitions later.
The multiple filing prohibition does not automatically prevent two related employers (for example, two subsidiaries of the same parent company) from filing separate H-1B petitions for the same employee. However, USCIS will likely issue a Request for Evidence (RFE) in this situation, and the burden is on the employer to show that there was a legitimate business need for doing so.
The new H-1B Cap regulations does not, however, prevent two unrelated employers from filing separate H-1B Cap petitions for the same individual.
H-1B Cap Random Selection Period
Last year, all cases received during the first two business days of the H-1B Cap filing period were eligible for the random selection process. USCIS has now increased this period to the first five business days. So assuming USCIS receives enough H-1B petitions to meet the cap within the first five days (which they most likely will), all H-1B petitions received during the first five business days will all be entered into the random selection process. Accordingly, an H-1B petition received on April 7 (the fifth business day) will be treated exactly the same as an H-1B petition received on April 1.
Master's Cap Random Selection Process
If USCIS receives more than 20,000 Master's Cap exemption cases within the first five business days, it will conduct a random selection selection process among all Master's Cap cases to determine which 20,000 will qualify for the exemption. Those Master's Cap cases not selected will then be entered into the general H-1B Cap random selection process, and thus have a chance to receive one of the general H-1B Cap numbers.
Tuesday, March 25, 2008
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2 comments:
Hi Are you aware the loophole of multiple filings from multiple employers? It is not fair for genuine employers (yes, i would like to stress this) and genuine applicants. I urge ALIA also raise this issue.
Actually, H-1B cap numbers are tied to individuals, not employers. So, even if several different employers file H-1B Cap petitions for the same individual, that individual will only be counted as a single cap number even if more than one employer's petition on the individual's behalf is approved.
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