News Update - March 20, 2008
By Alan Lee, Esq.†‡
New H-1B Rule Prohibits Multiple Filings by Same Employer and
Extends Time for H-1B Filings
In 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.
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