Mark A Ivener, A Law Corporation

USCIS Completes FY 2008 H-1B Selections, Changes Procedures


U.S. Citizenship and Immigration Services (USCIS) announced on April 12, 2007, that it completed the computer-generated random selection process to determine which H-1B petitions subject to the congressionally mandated H-1B cap for fiscal year (FY) 2008 would be accepted for processing. Among other things, petitioners who received receipt notices dated before April 12, 2007, cannot assume that their H-1B petitions have been accepted for processing, USCIS said.

As a result of the high volume of petitions subject to the computer-generated random selection process, USCIS did not conduct data entry of all cap-subject filings. Rather, it developed new procedures that “enabled the agency to efficiently process cap-subject petitions.” As required, FY 2008 cap-subject H-1B petitions were stamped to reflect the time and date of actual receipt. USCIS assigned a unique numerical identification number to the 123,480 properly filed H-1B petitions received on April 2 and 3 and, on April 12, conducted a computer-generated random selection process to determine which petitions would be accepted for processing. USCIS did not issue receipt notices for all the petitions received on April 2 and 3. It did, however, conduct data entry and generate (and in some cases issue) receipt notices for a portion of cap-subject petitions before conducting the random selection process. The issuance of receipt notices before conducting the random selection process had “no impact whatsoever” on whether a petition was randomly selected for processing, USCIS said.

Acknowledging that the process “caused some confusion,” USCIS noted the following:

  • Some cap-subject petitions were data-entered on April 2 and 3. Fees were deposited in connection with these petitions and receipt notices (Form I-797) were issued. USCIS cannot invalidate these receipt notices because the fees have been deposited. As noted above, petitioners who received receipt notices dated before April 12, 2007, cannot assume that their H-1B petitions have been accepted for processing. For cases that fall into this group, those that were not randomly chosen will be returned to petitioners and the filing fee will be refunded. Those that were accepted for processing will be processed under the original receipt notice.
  • Some cap-subject H-1B petitions were data-entered on April 4 and receipt notices were generated but never issued to petitioners. USCIS did not deposit any of the fees submitted with these filings and these receipt notices have been voided. For cases that fall into this group, those that were not chosen will be returned to petitioners with the filing fees and those that were accepted for processing will be issued official receipt notices dated on or after April 12, 2007.
  • Finally, a small number of cap-subject H-1B petitions, filed under premium processing, were also data-entered on April 4. In accordance with USCIS procedure, e-mail notification acknowledging receipt of these petitions was issued to petitioners. Official receipt notices were generated but never issued, and USCIS did not deposit any of the fees submitted with these filings. Thus, all generated receipt notices have been voided. For cases that fall into this group, those that were not chosen will be returned to petitioners with the filing fees and those that were accepted for processing will be sent a second e-mail confirmation of receipt and will be issued new receipt notices dated on or after April 12, 2007.

USCIS said it will return all petitions not randomly selected for processing, with the fee(s), to the petitioner or authorized representative. Final notification of those petitions is expected to occur in May.

USCIS continues to accept new FY 2008 H-1B petitions filed on behalf of aliens with U.S.-earned master’s or higher degrees. Those petitions have a separate cap of 20,000. Over 19,100 H-1B master’s degree petitions had been filed as of April 25, so that separate cap is likely to be reached very soon. USCIS plans to make a future announcement regarding the “final receipt date” for these petitions.

USCIS also announced that the 15-day premium processing period for petitions subject to the FY 2008 cap began after the computer-generated random lottery selected the petitions for processing. USCIS said that the large number of H-1B filings on April 2 and April 3 required placing conditions on the availability of the premium processing service. The agency’s ability to provide premium processing service to these petitions was affected by the fact that the cap was reached and exceeded the first day employers could file H-1B petitions.

Corporate clients may contact their members of Congress directly (by personalized letters, phone calls, or personal meetings) to let them know how the H-1B cap and employment-based (EB) backlog problems are hurting them. A model letter that client companies can personalize is located here. Also, the American Immigration Lawyers Association is collecting examples of how the inability to hire H-1B workers and the delays in getting EB green cards are adversely affecting companies, hospitals, and other entities. Examples (with or without attribution) may be e-mailed to H1Bhorror@aila.org. A sign-on letter template is available here.

USCIS’s announcement about the new H-1B procedures is available here. The agency’s announcement about the premium processing period is available here. The agency’s H-1B cap count page is here.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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