2009 H-1B visa season: What to expect under the new rules?

The H1B Season for 2009 will open today. Speculations are high as to how long it will take for the applications to overtake the quota – one day like last year or more. The situation this year is however a little different from the previous years, as USCIS has introduced a few changes to their H1B visa processing system, with the intention to streamlining the system and plugging a few loopholes. So, how are these going affect your chances?

No more multiple filings

This year employers will not be able to flood the quota by filing multiple applications for H-1B visas for the same job candidate. The penalty for multiple filings is set high at denial or rejection of all petitions filed by the offending employer.
Last year, many employers filed more than one application for a single candidate, gambling that at least one of the applications will be approved. Consequently, there the quota was filled up alarmingly fast. USCIS is hoping that by barring multiple filings, every employer will have a fair share of the quota.

The rule, however, allows parent companies and subsidiaries of an employer to file on behalf of the same beneficiary – they just have to prove legitimate business need.

First 5 Day Cap Counting Process

According to the new rule, the H1B cap counting and lottery process has also been changed this year. Previously, the rule stated that applications received on the “final receipt date” i.e. the date on which cap is reach were sorted by a computerized lottery system. However, last year the cap was reached on the first day of the application, making it the “final receipt date” as well. Consequently, all applications were sorted by the lottery system. This obviously made the whole process akin to lottery and drew a lot of hue and cry. This year USCIS has clearly defined a process for handling the cap count.

April 1, 2008 is the first day petitions may be received by USCIS.  If the “final receipt date” falls within any one of the first five business days, the random lottery selection process will be applied to all the cap-subject petitions received on those five days. 

Expect delays in receiving receipts

If you are expecting a receipt of your application within days of the “final receipt date”, we suggest you don’t hold your breath. USCIS was and still is under-manned compared to the rush of applications that will pour in. In case the “final receipt date” falls within the first five business days, it will take a few more weeks at least to enter the petition details into the computer for the random selection process. Once the 65,000 petitions are selected, in order to manage the rush, USCIS sometimes distributes the petitions received among its various service centers, which than will start processing the application and dispatching the receipts. So, expect delays and also be ready to receive the receipt or other notice from a service center other than the one to which the H-1B petition was mailed. 

Premium Processing

Again, in the likely scenario that the “final receipt date” falls within the first five business days, owing to the same time-constraint explained above, cap-subject petitions requesting premium processing will not processed until after the petitions are selected and receipted.  So the 15-day processing period will not start until much after the first few weeks. If in any case USCIS cannot provide premium processing for any case altogether, the fees will be reimbursed and the application processed under normal time frame.

Note: None of these new rules apply to either Cap-Exempt Petitions or Current H-1B Workers.