H-1B Roundup: Cap Reached, Random Selection Completed; Some Applications

'Wait-Listed' U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2008, that it had received enough H-1B petitions to meet the congressionally mandated cap for fiscal year (FY) 2009.

USCIS announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption.

On April 14, USCIS conducted the computer-generated random selection process to select which H-1B petitions for FY 2009 will continue to full adjudication. If approved, those H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue processing the petitions associated with those identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives.

As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to 10 weeks. For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period began on April 14, the day of the random selection process.

USCIS has "wait-listed" some H-1B petitions, meaning they could replace petitions chosen to receive an FY 2009 cap number but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition.

USCIS said it will send a letter to the wait-list petitioners to inform them of their status. USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees by early to mid-June.

USCIS also announced that, with several exceptions, it will not reject an H-1B petition subject to the fiscal year 2009 cap solely on the grounds that it was received at the wrong service center (e.g., the petition may have been inadvertently mailed to the California Service Center instead of the Vermont Service Center or vice versa).

This does not apply if the petitions were sent to the Texas or Nebraska Service Centers. USCIS said it was taking this "limited, short-term measure to alleviate concerns from the public where an H-1B petition has been received by USCIS but at the incorrect Service Center."

This measure applies only to H-1B petitions subject to the FY 2009 cap that were received by USCIS before the close of business on the final receipt date. The announcement that the H-1B cap has been reached is available at http://www.uscis.gov/files/article/H-1B_8Apr08.pdf.

The announcement about the random selection process is at uscis.gov/files/article/Update_USCIS_Runs_H1-B_Random_Selection%20Process.pdf.

The announcement of the preliminary number of H-1B petitions received is at uscis.gov/files/article/USCIS%20Update_H1 B_Preliminary% 20Count1_10Apr08.pdf.

The announcement about USCIS' policy regarding receipt at the wrong service center is at http://www.uscis.gov/files/article/H-1B_Filing_4Apr08.pdf.

DOS Issues Annual Guidance on Students and Exchange Visitors The Department of State has released a cable sent to the field on March 11, 2008, regarding student (F and M) and exchange visitor (J) nonimmigrant visa issues.

Among other things, the cable notes that first-time visa applicants may be the highest priority when scheduling appointments, and repeat applicants may be scheduled on a lower-priority tier. The cable also clarifies some information on the DS-2019 form, and discusses new Exchange Visitor Program (EVP) sanctions regulations and new Termination of Designation and Revocation of Program regulations, which took effect January 22, 2008.

Specifically, some of the major changes in the sanction and termination process include:

• Sponsors who were at risk of losing their program designations will have their cases heard through a paper review instead of an in-person review.

• A revised suspension process will freeze sponsors' operations for 120 days while their qualifications are under review.

• A new provision allows the Department to terminate an entire class of designated exchange visitor program sponsors if it believes specific programs, sponsors, exchange visitor category(ies), and/or activities compromise the national security of the U.S. or no longer further the Department's public diplomacy mission.

• Sponsors on whom the Bureau of Educational and Cultural Affairs imposes lesser sanctions are no longer allowed to appeal.

The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4202.html. Additional information about the J exchange visitor program is available at http://exchanges.state.gov/education/jexchanges/.

Statistics and data tables about foreign students and exchange visitors are available at http://opendoors.iienetwork.org/.

(to be continued)