FY 2009 H-1B Cap Update From AILA

Information from AILA regarding the upcoming H-1B filing “season,” as well as recently-announced filing changes for institutions of higher learning, their affiliates, and research institutions.

1. Should Premium Processing be used for cap-subject filings?

USCIS expects that the cap-subject H-1B receipt volume will be similar to last year. While Premium Processing is currently available, it may need to be suspended (as it was last year) for some period of time. USCIS understands that Premium Processing is used to get a quicker receipt. However, attorneys may want to consider waiting to see if a petition receives a cap number and then interfile the I-907. If there are any official changes to the Premium Processing option for these cases, USCIS will let AILA know. If you decide to file cases concurrently with Premium Processing make sure that clients are aware that the 15 days may not be guaranteed if there is a change to the program.

2. Can a petitioner file duplicate H-1B filings to increase chances of obtaining a cap number?

USCIS is currently drafting a regulation to address this question, expected to be published in the coming weeks, which will contain some sort of prohibition on the filing of duplicate cases. The definition of what is considered a "duplicate" will be addressed in that regulation. Please note that it is AILA's understanding that a petition filed under both the regular and the master's cap would not be considered a duplicate, but we will need to wait for the regulation to confirm.

3. What will happen to cap cases filed in the wrong Service Center?

Applicants should make sure to follow the guidance provided by USCIS on where to file their cases. Cap-subject cases should be filed based on the jurisdiction of the worksite. Cases that are filed at a wrong service center will be rejected.

4. What about e-filing?

E-filing will not be available for I-129 H petitions, including those which are cap-exempt.

5. Please clarify what petitions are to be filed at the CSC. Is it any petition that is not subject to cap-counting, including both cap-exempt and those already counted, or is it limited to petitions from institutions of higher learning, their affiliates, and non-profit and governmental research institutions?

On February 1, 2008, the USCIS published a USCIS Update designating the CSC as the place to file petitions by institutions of higher education and organizations and affiliated entities, and non-profit and governmental research institutions. Petitions for cap-exempt individuals (e.g., petitions for physicians to serve in shortage areas) and petitions for aliens already counted are to be filed according to established jurisdictional rules. A formal Federal Register notice in filing locations is in process. Until the notice is published in the Federal Register, H-1B cap-exempt petitioners are encouraged to file at the CSC under the terms of the USCIS Update. USCIS advises that for the present time those sent to other service centers will not be rejected, but will be relocated. Once the formal Federal Register notice is published, filing those petitions at the CSC will be mandatory and petitions filed incorrectly will be rejected.

AILA InfoNet Doc. No. 08021230 (posted Feb. 12, 2008).