Under the new rule, an employer may not file more than one petition for an H-1B visa for a single employee in a fiscal year, even for different positions. There is an exception for related employers (such as a parent and subsidiary) to file petitions on behalf of the same employee for different positions within the related companies. USCIS will deny H-1B petitions, or it will revoke approved H-1B petitions, if it finds that an employer filed multiple petitions for the same employee, and will not refund the filing fees.

In addition, USCIS will extend the time period for when it will analyze whether it has a sufficient number of cap-subject H-1B petitions to the fifth business day of the filing period beginning on April 1, 2008. This means that USCIS will continue to receive H-1B cap-subject filings until Monday, April 7, 2008. If, as we expect, USCIS will receive a sufficient number of H-1B cap-subject filings by April 7, 2008, USCIS will first conduct a random selection process (or lottery) of H-1B petitions filed under the 20,000 U.S. Masters (or higher) degree H-1B numbers. USCIS will then take those H-1B petitions submitted under the U.S. Masters degree cap, but not selected in the lottery, and it will add them to the pool of general H-1B cap-subject petitions. USCIS will then conduct another lottery of all of the petitions submitted under the general H-1B cap, along with the U.S. Masters degree cap petitions that did not make the lottery limited to those with a U.S. Masters degree.

USCIS has posted several updates, including a Fact Sheet, Q&A, and the News Release.

Jackson & Hertogs will continue to provide updates to clients as we learn more about this new regulation and its implementation.

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