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USCIS Questions and Answers: American Immigration Lawyers Association (AILA) Questions on H-1B Processing

Question: We understand that USCIS will be reviewing H cap cases for "duplicate filings." Please explain how USCIS will determine that a filing is a duplicate. Is this based on the Petitioner FEIN and beneficiary name only? If USCIS believes that a filing is a duplicate, will USCIS provide the Petitioner/Attorney with an opportunity to respond in case there is a misunderstanding? As many foreign nationals have the same or similar names (or various versions of their names) we want to make sure that date of birth or other factors will be reviewed before a case is denied as a duplicate.

Answer: Once USCIS determines that duplicate cases exist based on preliminary data entry information, an officer will pull the petitions and evaluate them to ensure that they are in fact duplicate filings. Duplicate petitions (same petitioner, same beneficiary) will be denied outright. Petitions by related companies for the same beneficiary, where an independent business need is not evident, may be issued a Request for Evidence giving each petitioner an opportunity to provide an explanation.



Question: In the event a cap-subject H-1B petition is improvidently rejected by the USCIS, what mechanism will be in place to facilitate the resubmission of the H-1B petition for inclusion in the lottery?

Answer: If the petitioner/attorney believes a petition was returned in error, the petition can be refiled with an explanation as to the error.

Source: http://www.uscis.gov/portal/site/uscis/menuitem.
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Source: By Marianne Kolbasuk McGee : InformationWeek : April 15, 2008

Employers who paid USCIS an additional $1,000 "premium processing" fee to speed things up will be notified within 15 days, or by April 29, if their petitions were selected.

If your H-1B visa petition was among the 85,000 applications the U.S. government randomly selected yesterday for fiscal 2009, keep a close eye on your snail mail.

U.S. Citizenship and Immigration Services says it will be mailing out notices no later than June 2 to those petitioners whose "properly filed" H-1B visa applications have been selected to "continue to full adjudication."

That means employers should know by early June which H-1B visa candidates they'll be able to hire starting Oct. 1, providing the applicants make it through the next stages, which include background checks, before the U.S. State Department actually issues the visas.

Employers who paid USCIS an additional $1,000 "premium processing" fee to speed things up will be notified within 15 days, or by April 29, if their petitions were selected.

USCIS says it conducted two random computer-generated selections yesterday. The first lottery drawing was on petitions qualifying for the 20,000 master's or higher degree exemption. The second selection was on the remaining advanced degree petitions, combined with the general H-1B pool of petitions, for the 65,000 cap. USCIS received about 163,000 H-1B visa petitions between April 1 and April 7 that were eligible for the random selections. That 163,000 tally does not include petitions filed by nonprofits and institutes of higher learning seeking to hire H-1B visa candidates, says an USCIS spokeswoman.

Nonprofits and universities are among the category of employers not subjected to an annual H-1B cap. Those employers are able to file H-1B visa petitions throughout the year, she says.

In addition to the 85,000 petitions selected yesterday, USCIS also has a waiting list of an unspecified number of H-1B candidates who could possibly replace yesterday's randomly selected petitioners but are subsequently denied, withdrawn, or found ineligible for other reasons. USCIS will notify the wait-list petitioners by mail as well.

USCIS will return fees to petitioners who weren't chosen in the April 14 lottery and aren't on the wait list, as long at their petitions weren't among duplicate filings for the same candidate. USCIS last month issued an interim rule banning the filing of multiple petitions for the same person.

H1B Lottery Completed!


On April 14, 2008, the USCIS conducted two random selections of H1B petitions to determine which cases will be eligible for the Fiscal Year 2009 (FY09) cap numbers. The first selection determined which of the cases will be eligible to receive one of the 20,000 advance degree cap exemptions. The second selection, consisted of all regular cap cases, and any cases not selected in the first selection.

The selected cases will now be reviewed and adjudicated. Cases which utilized the premium processing procedure will be reviewed within 15 days of the completion of the April 14th lottery.

Some cases have been placed on a waiting list. These cases were not selected in either lottery, but still have the potential to receive an H1B cap number. A case on the waiting list will replace a selected case in the event of a denial, withdrawal or other ineligibility. The USCIS will issue an advisement letter to all cases on the list. The USCIS expects to determine the fate of the wait listed cases within a six to eight week time frame.