News Update - March 20, 2008New H-1B Rule Prohibits Multiple Filings by Same Employer and Extends Time for H-1B FilingsIn H-1B news on March 19, 2008, U.S.C.I.S. did as expected and announced an interim rule prohibiting multiple H-1B filings by the same employer. At the same time, however, it gave practitioners and the public a pleasant surprise in extending the final day rule from 2 to 5 days - that is, filings received during the first five business days are to be accepted as part of the random selection of cap numbers if the cap is exhausted on the first day. This allows more relief to H-1B applicants (who now have more time to submit their cases), and to the various carriers and agency which would otherwise be inundated with massive deliveries and filings for April 1st. Counting five business days, the last day for filing would be Monday, April 7th. In explaining the multiple filing prohibition, U.S.C.I.S. made clear that petitions would be denied or revoked even if the same employer gave different positions in each petition. However, related employers could file petitions for the same applicant, with the caveat that they must each have a legitimate business need and not file the petition just to increase the alien's chances of being selected for an H-1B cap number. In those situations, U.S.C.I.S. stated that it might issue a request for additional evidence, a notice of intent to deny, or a notice of intent to revoke for any or each petition, and the burden rested with the employer to establish that it had a legitimate business need to file more than one H-1B petition on behalf of the same applicant. † The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2008 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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