As the time to start filing H-1B applications approach, many people are concerned of the visa cap. Moreover, USCIS changed some of its filing policies compared to last year. In order to help applicants file H-1B petitions correctly, we offer the following FAQs to help you file your H-1B petition correctly.

What is the earliest time USCIS starts to accept H-1B petition subject to the 2009 fiscal year quota?

April 1, 2008. That is the date USCIS starts to accept H-1B petitions subject to the 2009 fiscal year quota.

What’s the H-1B quota every fiscal year?

There are 65,000 standard H-1B numbers for the 2009 fiscal year starting October 1, 2008. Of this amount, 5,800 spots are reserved for Chilean and Singaporean nationals. There are also an additional 20,000 H-1B spots reserved for foreign nationals holding a master’s degree or higher from a U.S. university.

When did the H-1B quota for the 2008 fiscal year run out last year?

The 65,000 standard H-1B numbers were run out on the very first day (4/2/07) USCIS starting accepting H-1B petitions subject to the quota. The additional 20,000 advanced degree visas were used up by April 30, 2007.

Do you expect the same thing happen this year again?

Yes, we anticipate that the 65,000 standard H-1B numbers will run out on April 1, and the 20,000 advanced degree H-1B numbers will run out within a couple of weeks from April 1.

How does USCIS decide which H-1B petitions to be selected if the quota runs out on April 1?

USCIS will pool petitions received within the first five business days of accepting applications for the 2009 fiscal year, and apply a random selection process among all H-1B petitions received during this time period. This rule applies to both the standard 65,000 H-1B quota and 20,000 advanced degree quota.

What if the 20,000 advanced degree quota runs out during the first five business days?

If that is the case, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 quota. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.

Can I ask my employer to file multiple H-1B applications to increase the probability of selection in the lottery program?

No, To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. However, related employers (such as a parent company and its subsidiary) can file petitions on behalf of the same alien for different positions, based on a legitimate business need.

Can I ask different employers each to file an H-1B application for me?
Yes, you can as long as the business need is legitimate. However, we think you have the ethical responsibility to inform each of the employers about the multiple filing.

When should I file my petition?

USCIS has determined that petitions received within the first five business days of accepting applications for the 2009 fiscal year have equal chance to enter the lottery system. If your job is subject to the 65,000 standard H-1B quota, you should make sure your application will be received by USCIS no later than April 7.

If have a US master or above degree, you should also file your case no later than April 7 to use the 20,000 H-1B quota reserved for US master or above degree holders. We anticipate this quota will run out soon too, maybe during the first week of April.

Should I file my H-1B petition earlier than April 1 to assure it will arrive at USCIS on time?

No, USCIS won’t accept H-1B petitions subject to the 2009 quota earlier than April 1, 2008.

I will graduate with a master’s degree in this May, can I apply for the 20,000 advanced degree H-1B quota?

Yes, you can, but you must submit evidence that you have completed all requirements of the master degree from an official at the educational institution qualified to provide that information. Normally, a letter from an official such as a Dean, Registrar, or department head is acceptable. Don’t use a lower-level employee, such as your advisor or lab director, to write the letter.

Which courier should I use, USPS or private courier (FedEx, UPS, DHL)?

Based on a memo from American Immigration Lawyer Association, USPS may cause some delivery problems when timing is sensitive. Therefore, it is safer to use private courier, FedEx, UPS or DHL.

Where do I file?

If you petition is cap exempt, you should file it to California Service Center, regardless where your H-1B employer is located.

If you petition is cap-subject, you should file it to California Service Center or Vermont Service Center, depending on where your H-1B employer is located. For details of the jurisdiction coverage of these two centers, please refer to our website: http://www.hooyou.com/ins_offices/index.html

When can I start working with the H-1B subject to the 2009 fiscal year quota?

You can start working with the H-1B status from October 1, 2008.

If I file an H-1B transfer, when can I start working?

Under the H-1B portability rule, if your previously approved H-1B remains valid, you can begin working for the new employer upon that employer’s filing an H-1B transfer petition. In this case, the filing date is the date USCIS receives the application—i.e., the “received date” on the receipt notice issued by USCIS. This rule applies regardless of whether the new job is subject to the H-1B cap.

Should I use the premium processing service?

This service, which costs an extra $1,000, guarantees that an H-1B petition will be approved or denied within 15 calendar days after USCIS receives the petition. Although the premium processing does not increase the chance of selection in the lottery program, we suggest you use it because you can get the result faster and the premium service can facilitate the communication with the USCIS if there is any problem with the application.

If my OPT expires before October 1, 2008, what can I do?

One can file an H-1B application as early as April 1, 2008. However, the approved H-1B will not take effect until October 1, 2008. This gap can be problematic for applicants whose current status will expire between April and October. In order to change to H-1B status in the U.S., the law requires that an alien beneficiary be in a valid non-immigrant legal status on September 30. There must be proof of this in the H-1B petition package.

Holders are allowed a 60-day “grace period” of legal status after the expiration of their OPT. Thus, an OPT that expires on July 31 will effectively be good until September 30. So, if your OPT expires later than July 30, there is no gap problem.

Applicants with OPTs that expire between April 1 and July 30 will not be in a valid non-immigrant status on September 30. Therefore, a request for change of status to H-1B on October 1 will not be granted. In some instances, USCIS officers may use their discretion to grant a change of status even there is a gap between the expiration date of previous status and the starting date of the new H-1B. However, this is not guaranteed.

So, if your OPT expires before July 31, you would be out of status before the new H-1B takes effect. In order to fix the gap problem, you have two options:

a). You may travel to your home country and apply for an H-1B visa to re-enter the U.S.
b). you can abandon your current F-1 OPT and maintain legal status by enrolling in another F-1 program or change to another status, such as to B-2, in order to keep you in legal status until October 1. Enrolling in another F-1 program is a process that can be handled by the school, does not require filing with the USCIS, and is a relatively quick, practical option. However, you must file for your new status before April 1 in order to include the evidence of your continued status on your H-1B application. According to USCIS regulations, once one obtains a new I-20 by enrolling in the new F-1 program, the old F-1 program will end and the OPT will become invalid for the remaining approved period. The alien will not be able to work from April 1 until October 1.