73 Fed. Reg. 15389 (March 24, 2008)

Effective March 24, 2008, a USCIS Interim Final Rule modifies the H-1B cap selection process and prohibits multiple filings of H-1B petitions.

Changes under the rule include:

  • 5-Day Filing Window. USCIS will apply a random selection process to all cap-subject H-1B petitions received during the first five business days of accepting applications for the coming fiscal year (for 2008, all cap-subject petitions received April 1-7 would be included in the process).
    • Note: USCIS will first apply the random selection process to H-1B petitions eligible for the 20,000 numbers reserved for aliens with a U.S. master’s degree or higher. Those petitions not selected in the first process will be included in the random selection process with all other cases counted toward the 65,000 cap.
  • Denial of multiple filings for same individual. USCIS will deny petitions of an employer who files multiple H-1B petitions for the same employee. 
    • Note: This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need., e.g. both need a CFO (see example in supp. info to ITR)
  • Denial of petitions that incorrectly claim an exemption from any H-1B numerical limits. USCIS will deny petitions of an employer who incorrectly requests an exepmption from the cap.
  • No refunds for petitions denied under the new rule. USCIS will not refund fees for any petitions denied as multiple-filings or incorrect claims of exemption

Additional Guidance

USCIS put out a press release and participated in a teleconference with NAFSA regarding this Interim Final Rule. For more information, see the USCIS News Release.