[Federal Register Volume 73, Number 57 (Monday, March 24, 2008)]
[Rules and Regulations]
[Pages 15389-15395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5906]
[[Page 15389]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2434-07; DHS Docket No. USCIS-2007-0060]
RIN 1615-AB68
Petitions Filed on Behalf of H-1B Temporary Workers Subject to or
Exempt From the Annual Numerical Limitation
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: The Department of Homeland Security is amending its
regulations governing petitions filed on behalf of alien workers
subject to the annual numerical limitations applicable to the H
nonimmigrant classification. This rule precludes a petitioner from
filing more than one petition based on the H-1B nonimmigrant
classification on behalf of the same alien temporary worker in a given
fiscal year if the alien is subject to a numerical limitation or is
exempt from a numerical limitation by virtue of having earned a
master's or higher degree from a U.S. institution of higher education.
Additionally, this rule makes accommodations for petitioners seeking to
file petitions on the first day on which filings will be accepted for
the next fiscal year on behalf of alien workers subject to the annual
numerical limitation or U.S. master's or higher degree holders exempt
from this limitation. This rule also clarifies the treatment of H
nonimmigrant petitions incorrectly claiming an exemption from the
numerical limitations. Finally, the rule removes from the regulations
unnecessary language regarding the annual numerical limitation
applicable to the H-1B nonimmigrant classification. These changes are
necessary to clarify the regulations and further ensure the fair and
orderly adjudication of petitions subject to numerical limitations.
DATES: Effective date: This rule is effective March 24, 2008.
Comment Date: Written comments must be submitted on or before May
23, 2008.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2007-0060 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: You may submit comments directly to USCIS by e-
mail at [email protected]. Include DHS Docket No. USCIS-2007-0060 in the
subject line of the message.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2007-0060
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number is (202)
272-8377.
FOR FURTHER INFORMATION CONTACT: Patricia Jepsen, Adjudications
Officer, Business and Trade Services, Office of Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20529, telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. The Department of Homeland Security (DHS) and U.S.
Citizenship and Immigration Services (USCIS) also invite comments that
relate to the economic, environmental, or federalism effects that might
result from this interim rule. Comments that will provide the most
assistance to USCIS in developing these procedures will reference a
specific portion of the interim rule, explain the reason for any
recommended change, and include data, information, or authority that
support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2007-0060. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.
II. Background
The ability of employers to fill available U.S. jobs on a timely
basis with alien temporary workers otherwise eligible for the H-1B
nonimmigrant classification generally depends on when they filed
petitions for such workers and the number of such petitions that USCIS
has approved with respect to the relevant fiscal year (i.e., October 1
through September 30). With a few exceptions, the total number of
aliens who may be accorded H-1B nonimmigrant status during any fiscal
year currently may not exceed 65,000 (referred to as the ``cap'' or
``numerical limitation''). See Immigration and Nationality Act (INA)
sec. 214(g), 8 U.S.C. 1184(g). USCIS may only accord status to
qualified aliens in the order in which the H-1B petitions are filed.
See INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3). This interim final rule
will improve USCIS' ability to administer the cap by modifying the
filing procedures for H-1B petitions submitted by employers on behalf
of aliens.
A. The H-1B Petition Process
An H-1B nonimmigrant is an alien employed to perform services in a
specialty occupation, services related to a Department of Defense
cooperative research and development project or coproduction project,
or services of distinguished merit and ability in the field of fashion
modeling. INA sec. 101(a)(15)(H), 8 U.S.C. 1101(a)(15)(H); 8 CFR
214.2(h)(4). To qualify as a specialty occupation, the position must
meet one of the following requirements: (1) The minimum entry
requirement for the position normally is a bachelor's or higher degree
or its equivalent; (2) the degree requirement is common to the industry
or the position is so complex or unique that it can be performed only
by an individual with a degree; (3) the employer normally requires a
degree or its equivalent for the position; or (4) the nature of the
specific duties is so specialized and complex that the knowledge
required to perform the duties is usually associated with attainment of
a bachelor's or higher degree. 8 CFR 214.2(h)(4)(iii)(A).
Before employing an H-1B temporary worker, a U.S. employer first
must file an H-1B petition with USCIS on behalf of the worker on Form
I-129, ``Petition for a Nonimmigrant Worker'' together with the forms,
``H Classification Supplement to Form I-129'' and ``H-1B Data
Collection and Filing Fee Exemption Supplement.'' The worker must be
named on the petition. 8 CFR 214.2(h)(2)(iii). For a petition filed on
behalf of a temporary worker in a
[[Page 15390]]
specialty occupation, the employer also must file a Labor Condition
Application (LCA) that has been certified by the Department of Labor
(DOL). 8 CFR 214.2(h)(4)(i)(B)(1). The LCA specifies the job, salary,
length, and geographic location of employment. The petitioner must pay
several different fees with the H-1B petition. The base filing fee is
$320. 8 CFR 103.7(b)(1) (listing Form I-129 filing fee). In addition, a
petition filed by an employer with 26 or more full-time employees must
pay a $1,500 fee; a petition filed by an employer with 25 or fewer
full-time employees must pay a $750 fee. INA 214(c)(9)(B), 8 U.S.C.
1184(c)(9)(B). Most employers filing an initial H-1B petition, and H-1B
employers filing a petition on behalf of an alien currently employed as
an H-1B temporary worker by another employer, must pay a fraud
prevention and detection fee of $500. INA 214(c)(12)(A) and (C).
Finally, an employer requesting expedited processing of the H-1B
petition must pay an extra $1,000 premium processing fee with the
expedited processing request. INA 286(u), 8 U.S.C. 1356(u); 8 CFR
103.2(f)(2). These fees are not refundable. 8 CFR 103.2(a)(1).
Once USCIS accepts the H-1B petition, it adjudicates the petition
and issues a written decision notifying the petitioner whether USCIS
requires additional information before it can issue a decision or
whether the petition is approved or denied. 8 CFR 103.2(a)(8) and
214.2(h)(9) and (10). USCIS may revoke a petition that has been
previously approved, even after expiration of the petition. 8 CFR
214.2(h)(11). A petitioning employer, following receipt of the written
decision, may appeal to USCIS the denial or revocation of a petition. 8
CFR 214.2(h)(12). An approved H-1B petition is valid for a period of up
to three years.\1\ See 8 CFR 214.2(h)(9)(iii)(A)(1). Prior to the
expiration of the initial H-1B petition, the petitioning employer may
apply for an extension of stay, or a different employer may petition on
behalf of the temporary worker. 8 CFR 214.2(h)(2)(i)(D) and
(15)(ii)(B). However, any such extension only may only be granted for a
period of time such that the total period of the temporary worker's
admission does not exceed six years.\2\ INA sec. 214(g)(4), 8 U.S.C.
1184(g)(4); 8 CFR 214.2(h)(13)(iii)(A). At the end of the six-year
period, such alien must either seek permanent resident status or depart
the United States.\3\ See 8 CFR 214.2(h)(13)(iii)(A). The alien may be
eligible for a new six-year period of admission in H-1B nonimmigrant
status if he or she remains outside the United States for at least one
year. Id.
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\1\ Initial H-1B petitions involving a DOD research and
development or co production project may be approved for a period of
up to five years. 8 CFR 214.2(h)(9)(iii)(A)(2).
\2\ Aliens entering the United States in H-1B status to perform
services of an exceptional nature in a research, development and/or
co production project administered by the Department of Defense may
remain in the United States for a maximum period of ten years. 8 CFR
214.2(h)(13)(iii)(B).
\3\ Certain aliens are exempt from the six-year maximum period
of admission under sections 104(c) and 106(a) and (b) of the
American Competitiveness in the Twenty-First Century Act of 2000,
Pub. L. No. 106-313, 114 Stat. 1251 (2000).
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B. H-1B Nonimmigrants Subject to the 65,000 Cap
Most aliens seeking H-1B nonimmigrant classification are subject to
the 65,000 cap. Exempt from the 65,000 cap are aliens who: (1) Are
employed at, or have received offers of employment from, an institution
of higher education, or a related or affiliated nonprofit entity; (2)
are employed at, or have received offers of employment from, a
nonprofit research organization or a governmental research
organization; or (3) have earned a master's or higher degree from a
U.S. institution of higher education. INA sec. 214(g)(5), 8 U.S.C.
1184(g)(5). A cap of 20,000 applies to the exemption based on an
alien's U.S. master's or higher degree (``20,000 cap on master's degree
exemptions''). INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). Based on
the employer's answers to the questions on the ``H-1B Data Collection
and Filing Fee Exemption Supplement'' to Form I-129, USCIS determines
whether the alien beneficiary qualifies for one of the exemptions.
The spouses and children of H-1B aliens, classified as H-4
nonimmigrants, are exempt from the 65,000 or 20,000 cap. See INA sec.
214(g)(2); 8 U.S.C. 1184(g)(2); 8 CFR 214.2(h)(8)(ii)(A). In addition,
USCIS does not apply the 65,000 or 20,000 cap in the following cases:
requests for petition extensions or extensions of stay in the United
States; and petitions filed on behalf of aliens who are currently in H-
1B nonimmigrant status but are seeking to change the terms of current
employment, change employers, or work concurrently under a second H-1B
petition. Such aliens have already been counted towards the cap(s). See
INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7); 8 CFR 214.2(h)(8)(ii)(A).
C. Random Selection Process
In order to ensure that the 65,000 and 20,000 caps are not
exceeded, USCIS monitors the number of H-1B petitions it receives. The
first day on which petitioners may file H-1B petitions can be as early
as six months ahead of the employment start date. 8 CFR
214.2(h)(9)(i)(B). Therefore, a petitioner requesting an employment
start date of October 1, the first day of the next fiscal year, may
file the H-1B petition as early as April 1 of the current fiscal year.
When USCIS determines, based on the number of H-1B petitions it has
received, that the applicable cap will be reached, it announces to the
public the final day on which it will accept such petitions for
adjudication in that fiscal year. USCIS refers to this day as the
``final receipt date.'' See 8 CFR 214.2(h)(8)(ii)(B). USCIS then
randomly selects the number of petitions necessary to reach the cap
from the petitions received on the final receipt date. Id. If USCIS
receives sufficient H-1B petitions to reach the cap for the next fiscal
year on the first day that filings may be made, that day is the final
receipt date. USCIS then randomly applies all of the cap numbers among
the H-1B petitions filed on that day and the following day. Id.
Following the random selection process conducted for the 65,000
cap, USCIS rejects any petitions that are not selected or that are
received after the final receipt date (or the day following the final
receipt date, if applicable). Id.; 8 CFR 214.2(h)(8)(ii)(D). With
respect to the 20,000 cap, USCIS will count any non-selected or
subsequently filed H-1B petitions towards the 65,000 cap. If the 65,000
cap already has been reached, however, USCIS will reject such
petitions.
The procedures at 8 CFR 214.2(h)(8)(ii)(B) for assigning cap
numbers also apply to other H nonimmigrant petitions that are subject
to numerical limitations. See 8 CFR 214.2(h)(8)(i). However, because
demand for other H categories has not been as great as for the H-1B
classification, USCIS has only had to apply the random selection
procedures to H-1B petitions subject to the overall 65,000 cap or the
20,000 cap on master's degree exemptions.
D. Random Selection Process Under the 65,000 Cap for Fiscal Year 2008
On Monday, April 2, 2007, the first available filing day for fiscal
year (FY) 2008, USCIS received H-1B petitions totaling nearly twice the
65,000 cap. See USCIS Update at http://www.uscis.gov/files/pressrelease/H1BFY08Cap040307.pdf. This was the first time since the
random selection process regulations were promulgated that USCIS
received more petitions than
[[Page 15391]]
available cap numbers on the first available filing day. USCIS believes
that petitioners rushed to file H-1B petitions for FY 2008 on the first
available filing day because the cap had been reached very early in the
previous fiscal years, and petitioners may have anticipated that a
similar shortage of H-1B cap numbers would occur for FY 2008.\4\ In
order to ensure receipt of a petition by USCIS on April 2, H-1B
petitioners incurred significant costs to send their petitions via
overnight courier. The huge volume of filings scheduled for delivery on
April 2 caused logistical problems for overnight couriers and on the
two USCIS service centers where filings could be made.
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\4\ Each year, the cap has been reached earlier in the year. In
FY07, the cap was reached on 5-26-06 (see http://www.uscis.gov/files/pressrelease/FY07H1Bcap_060106PR.pdf). In FY06, the cap was
reached on 8-10-05 (http://www.uscis.gov/files/pressrelease/H-1Bcap_12Aug05pdf ). In FY05, the cap was reached on 10-1-04 (http://www.uscis.gov/files/pressrelease/H1B_05fnl100104.pdf).
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Using the petitions received on April 2 and April 3, USCIS
conducted the random selection process and thereafter rejected all
petitions that were not randomly selected. When adjudicating the
selected petitions, USCIS found approximately 500 instances where a
single beneficiary had been named on at least two petitions filed by
the same petitioner in what appears to have been an attempt to increase
the chances of being selected in the random selection process. As a
general practice, when USCIS approved a petition for a specifically-
named individual, it denied any duplicate petitions subsequently
adjudicated. Under current procedures, because H-1B cap numbers are
allotted per alien, and not per petition, no adverse consequences
befall a petitioner that seeks to exploit the system through filing
multiple petitions. By statute, USCIS may only allot one cap number per
alien beneficiary, regardless of the number of petitions that were
filed on the alien's behalf. INA section 214(g)(7), 8 U.S.C.
1184(g)(7).
Based on its experience administering the 65,000 cap, USCIS has
determined that the current procedures applicable to petitions filed on
behalf of cap-subject aliens pose three problems. First, USCIS has
determined that accepting duplicate filings over the course of the
fiscal year, as well as for the random selection process, undermines
the fair and orderly administration of the cap. When USCIS receives
enough H-1B petitions to meet the cap on the first filing day for the
coming fiscal year, then conducts an early random selection process,
the filing of duplicative petitions increases the odds that USCIS will
select at least one of the duplicative petitions for adjudication. Such
petitioners thereby gain an unfair advantage over other petitioners
participating in the random selection process who filed a single
petition for a given beneficiary and job offer. Moreover, the filing of
duplicative petitions results in unnecessary adjudications. Such
unnecessary adjudications slow the overall processing of H-1B
petitions, creating disadvantages for employers and otherwise eligible
alien beneficiaries who need to make advance arrangements for the
beneficiaries' upcoming employment.
Second, since the current regulations provide that the final
receipt date is the first day on which filings will be accepted if the
cap is reached on that day, and USCIS understands that petitioners
anticipate the cap being reached on the first day for future fiscal
years, petitioners feel pressured to file petitions on that day for
fear of being excluded from the random selection process. USCIS faces
significant logistical difficulties in order to handle such a large
number of filings being made on the same day. While the current
regulations at 8 CFR 214.2(h)(8)(ii)(B) provide some relief by
authorizing USCIS to include in the random selection process petitions
filed on the first day and the following day, this relief has proved to
be insufficient to alleviate these difficulties.
Third, the filing of duplicate or multiple petitions may result in
USCIS making available more than one receipt number to the same
beneficiary, making it more difficult for USCIS to achieve an accurate
projection of the number of petitions needed to generate the required
number of approvals to reach the cap. In turn, USCIS may prematurely
determine that the cap has been reached and either subsequently reject
timely-filed petitions or close the opportunity for other prospective
H-1B employers to file petitions.
E. Cap on Master's Degree Exemptions
Just as with the 65,000 cap, the 20,000 cap on master's degree
exemptions has been exhausted earlier and earlier for each fiscal year
since the cap exemption was added to the law. See Omnibus
Appropriations Act for Fiscal Year 2005, Div. J, Tit. IV, section 425,
Public Law 108-447, 118 Stat. 2809 (2004) (establishing the master's
degree exemption). For FY 2006, the 20,000 cap was reached on January
17, 2006. For FY 2007, the cap was reached on July 26, 2006, less than
four months after petition filings began on April 1, 2006. For FY 2008,
the cap was reached on May 4, 2007, just over one month after petition
filings began on April 2, 2007. For each of these fiscal years, USCIS
announced a final receipt date and conducted the random selection
process. See USCIS Update at http://www.uscis.gov/files/pressrelease/H1Bfy08CapUpdate050407.pdf. USCIS rejected any non-selected or
subsequently filed petitions since the 65,000 cap on H-1B petitions
already had been reached by the time USCIS conducted the random
selections.
USCIS believes that the trend of exhausting the 20,000 cap on
master's degree exemptions at an earlier date will continue. Should
both the 20,000 and 65,000 caps be reached on the same day that numbers
become available (e.g., April 1 of the preceding fiscal year), no
regulatory mechanism is in place to facilitate administration of the
20,000 cap in relation to the 65,000 cap. In addition, while USCIS is
not aware of duplicative or multiple H-1B petitions being filed in past
fiscal years on behalf of the same aliens eligible for the master's
degree exemption, USCIS anticipates the possibility of such filings for
future fiscal years as the H-1B classification becomes increasingly
oversubscribed. In fact, USCIS believes that for FY 2009, it is likely
that petitioners will rush to file H-1B petitions on behalf of aliens
eligible for the master's degree exemption on the first available
filing days, in anticipation that there will be a shortage of master's
degree exemptions.
The filing of duplicative or multiple H-1B petitions on behalf of
an alien eligible for the master's degree exemption would place
employers filing such petitions at an unfair advantage over employers
filing only a single petition by increasing the chances that one of the
duplicative or multiple petitions would be selected. This problem would
be exacerbated were the 20,000 cap to be reached prior to or at the
same time as the 65,000 cap, since all petitions not selected in the
random selection process for the 20,000 cap would be considered twice--
at the time of the random selection for the 20,000 cap and, thereafter,
for the 65,000 cap. This would reduce the availability of H-1B numbers
for single petition filers. The same problem holds true if employers of
aliens subject to the master's degree exemption seek to increase the
chances of obtaining an H-1B number by filing concurrent petitions for
the same aliens under both the master's degree exemption and the 65,000
cap. In its administration of the 65,000 and 20,000 caps, USCIS must
remove any potential for unfairness and ensure that the H-1B petitions
filed on
[[Page 15392]]
behalf of aliens subject to either or both caps have an equal chance of
being selected.
III. Changes in This Interim Rule
A. Final Receipt Date When Cap Numbers Are Used Up Quickly
This rule provides that USCIS will include petitions filed on all
of those first five business days in the random selection process if
USCIS receives a sufficient number of petitions to reach the applicable
numerical limit (including limits on exemptions) on any one of the five
business days on which USCIS may accept petitions. This will eliminate
filing problems resulting from a rush of filings made on the first day
on which employers may file petitions for the upcoming fiscal year. See
revised 8 CFR 214.2(h)(8)(ii)(B). USCIS has determined that a filing
period of five business days is sufficient to account for a wider range
of mail delivery times offered by the various mail delivery providers
available to the public.
This rule also provides that, if both the 65,000 and 20,000 caps
are reached within the first five business days available for filing H-
1B petitions for a given fiscal year, USCIS must first conduct the
random selection process for petitions subject to the 20,000 cap on
master's degree exemptions before it may begin the random selection
process of petitions to be counted towards the 65,000 cap. See revised
8 CFR 214.2(h)(8)(ii)(B). After conducting the random selection for
petitions subject to the 20,000 cap, USCIS then must add any non-
selected petitions to the pool of petitions subject to the 65,000 cap
and conduct the random selection process for this combined group of
petitions. Therefore, those petitions that otherwise would be eligible
for the master's degree exemption that are not selected in the first
random selection will have another opportunity to be selected for an H-
1B number in the second random selection process. This rule also
clarifies that those petitions not selected in either random selection
will be rejected. See id.
B. Elimination of Multiple Filings
To ensure the fair and equitable distribution of cap numbers, this
rule precludes a petitioner (or its authorized representative) from
filing, during the course of any fiscal year, more than one H-1B
petition on behalf of the same alien beneficiary if such alien is
subject to the 65,000 cap or qualifies for the master's degree
exemption. See new 8 CFR 214.2(h)(2)(i)(G). This preclusion applies
even if the petitions are not duplicative.
USCIS recognizes that, by statute, multiple filings of H-1B
petitions are contemplated. See INA sec. 214(g)(7), 8 U.S.C.
1184(g)(7). Nevertheless, USCIS finds that this rule's preclusion of
duplicative H-1B filings is consistent with the statute. Section
214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), states that ``[w]here
multiple petitions are approved for 1 alien, that alien shall be
counted only once.'' USCIS interprets this statutory language as
applying to an alien who has multiple petitions filed on his or her
behalf by more than one employer. Therefore, an alien who will be
performing H-1B duties on behalf of two separate petitioners will be
counted only once against the cap. USCIS does not believe that the
statutory language at section 214(g)(7) of the INA, 8 U.S.C.
1184(g)(7), was intended to allow a single employer to file multiple H-
1B petitions on behalf of the same alien. Such a broad interpretation
would undermine the purpose of the H-1B numerical cap since multiple
filings can result in the misallocation of the total available cap
numbers.
USCIS recognizes that, on occasion, an employer may extend the same
alien two or more job offers for distinct positions and therefore have
a legitimate business need to file two or more separate H-1B petitions
on behalf of the same alien. This rule precludes this practice if the
alien beneficiary is subject to the numerical limitations or qualifies
for the master's degree exemption. First, allowing multiple filings by
one employer on behalf of the same alien could create a loophole for
employers that seek to exploit the random selection process to the
competitive disadvantage of other petitioners. Such employers could
file multiple petitions on behalf of the same alien under the guise
that the petitions are based on different job offers, when the
employment positions are in fact the same or only very slightly
different.
Second, requiring USCIS adjudicators to distinguish between
multiple petitions filed by one employer for one alien based on
different job offers and duplicative petitions for one alien for the
same, single position would require a significant expenditure of
limited USCIS adjudicative resources. USCIS could not make such
determinations on the face of the petition, but would need to
substantively examine and compare the merits of the petition and any
other petition filed by the same employer on behalf of the alien. This
would defeat the purpose of the random selection process, which is not
intended to be a decision on the merits, but instead, an expeditious
way for USCIS to determine which petitions are eligible for
consideration on the merits.
Finally, prohibiting employers from filing multiple petitions on
behalf of the same alien should have no impact on the unusual situation
where an employer may have the same alien in mind for materially
distinct employment positions. Once an alien is allocated an H-1B
number based on one petition, the employer is able to file an amended
petition or a petition for concurrent employment to reflect the
different nature of the duties that are associated with the
beneficiary's second employment position. Since the alien would have
already been counted against the cap, such amended or additional
petition would not be affected by the prohibition on multiple petition
filings. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7).
For these reasons, USCIS believes that it must curtail both
duplicative and multiple petition filings by the same employer in order
to prevent future fairness problems similar to those USCIS experienced
with its administration of the FY 2008 random selection process for the
65,000 cap. Accordingly, this rule provides that USCIS will deny all
the petitions filed by an employer (or authorized representative) for
the same fiscal year with respect to the same alien subject to the
65,000 or 20,000 caps. See new 8 CFR 214.2(h)(2)(i)(G). In cases where
USCIS does not discover that duplicative or multiple petitions were
filed until after approving them, this rule also provides that USCIS
may revoke all such petitions if they were approved after this rule
becomes effective. Id.
This rule does not, however, preclude related employers from filing
petitions on behalf of the same alien. USCIS recognizes that an
employer and one or more related entities (such as a parent, subsidiary
or affiliate) may extend the same alien two or more job offers for
distinct positions and therefore have a legitimate business need to
file two or more separate H-1B petitions on behalf of the same alien.
For example, a Fortune 500 company may be the parent company of
numerous U.S.-based subsidiaries whose business is to engage in either
the food, beverage or snack industries. Each line of business may, in
turn, be divided into several business units and operate distinct
companies (restaurant, bottled beverage plant, cereal manufacturer,
etc) with different EIN numbers, addresses, etc. Although all the
subsidiaries are ultimately related to the parent company through
corporate ownership, this rule does not prohibit different
[[Page 15393]]
subsidiaries from filing one H-1B petition each on behalf of the same
alien so long as each employer/subsidiary has a legitimate business
need to hire such alien for a position within that subsidiaries'
corporate structure. Thus, in this example, if the bottled beverage
plant owned by the Fortune 500 company and the cereal manufacturing
company owned by the same Fortune 500 company are each in need of the
services of a Chief Financial Officer, both may file one petition each
on behalf of the same alien. A subsidiary should not file an H-1B
petition for an alien just to increase the alien's chances of being
selected for an H-1B number where that subsidiary has no legitimate
need to employ the alien and is, instead, only filing a petition to
facilitate the alien's hiring by a different, although related,
subsidiary.
USCIS may issue a request for additional evidence or notice of
intent to deny, or notice of intent to revoke for any or each petition
if it determines that the employer and related entity(ies) filed a
duplicate petition as defined in this regulation. See 8 CFR parts 103
and 214.2(h)(11). The burden rests with the employer to establish that
it has a legitimate business need to file more than one H-1B petition
on behalf of the same alien. If the employer does not meet its burden,
USCIS may deny or revoke each petition, as appropriate. Without such
authority, a loophole would exist for related employers to file
multiple petitions on behalf of the same alien under the guise that the
petitions are based on different job offers, when the true purpose of
filing the petitions is to secure employment for the alien with a
single employer seeking his or her services. As an example, one target
of this provision is the unscrupulous employer that establishes or uses
shell subsidiaries or affiliates to file additional petitions on behalf
of the same alien in order to increase the alien's chances of being
allotted an H-1B number. USCIS believes that these consequences are
warranted in order to deter unfair filing practices and further ensure
the integrity of the H-1B cap counting process.
To date, USCIS has identified the problems resulting from multiple
filings only in the context of H-1B petitions. For this reason, this
rule limits the bar on multiple petition filings to H-1B petitions.
C. Denial of Petitions After Cap Numbers Are Used
Over the past few years, USCIS has received a significant number of
petitions that claim to be exempt from the 65,000 cap, but are
determined after the final receipt date or after all cap numbers have
been used to be subject to the cap. The current regulations do not
specifically address treatment of such petitions. This rule amends the
regulations to clarify that such petitions will be denied rather than
rejected. See revised 8 CFR 214.2(h)(8)(ii)(B) and (D). USCIS has
determined that denial of these petitions is appropriate because USCIS
must adjudicate them in order to make a determination on whether the
alien beneficiary is subject to the numerical cap. USCIS only rejects
filings before an adjudication takes place. See 8 CFR 103.2(a)(7).
Because USCIS must adjudicate these petitions, it will not return the
petition and refund the filing fee.
D. Technical Changes
1. Removal of References To Cap Numbers
This rule revises 8 CFR 214.2(h)(8)(i)(A) to remove specific
references to the H-1B numerical cap. The revised paragraph now
generally refers to the numerical limitations set forth in section
214(g)(1) of the INA, 8 U.S.C. 1184(g)(1). USCIS has determined that
specifying the cap numbers in the regulations is not necessary and may
cause confusion in the future should Congress change the INA.
2. Inclusion of 20,000 Cap
This rule revises 8 CFR 214.2(h)(8)(ii)(B) to clarify that the
random selection process applies to the administration of the 20,000
cap on master's degree exemptions. The current provision generally
refers to ``numerical limitations,'' ``the numerical limit,'' or
``cap.'' To maintain consistent terminology, this rule also replaces
references in 8 CFR 214.2(h)(8)(ii)(B) and (D) to the ``cap'' with the
statutory term, ``numerical limitations.''
IV. Regulatory Requirements
A. Administrative Procedure Act
This final rule addresses requirements that are procedural in
nature and does not alter the substantive rights of applicants or
petitioners for immigration benefits. Accordingly, this final rule is
exempt from the notice and comment requirements under the
Administrative Procedure Act (APA) at 5 U.S.C. 553(b)(A). This rule
does not change the eligibility rules governing any immigration
benefit. It will not confer rights or obligations upon any party. This
rule clarifies existing USCIS regulations and modifies the filing
requirements for petitioners submitting H-1B petitions.
In addition, USCIS believes that good cause exists to implement
this change effective immediately upon publication in the Federal
Register as an interim final rule without first providing notice and
the opportunity for public comment. The APA provides that an agency may
dispense with notice and comment rulemaking procedures when an agency,
for ``good cause,'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' See 5 U.S.C.
553(b)(B). The exception excuses notice and comment, in emergency
situations, or where ``the delay created by the notice and comment
requirements would result in serious damage to important interests.''
Woods Psychiatric Institute v. United States, 20 Cl. Ct. 324, 333 (Cl.
Ct. 1990) aff'd 925 F.2d 1454 (Fed. Cir. 1991); also National Fed'n of
Fed. Employees v. National Treasury Employees Union, 671 F.2d 607,
611(D.C. Cir. 1982).
This rule is necessary to preclude the potential for abuse by those
petitioners who might seek an unfair advantage in obtaining one of the
limited number of H-1B petition approvals. As discussed above, last
year was the first year that the 65,000 H-1B cap was reached on the
same day that petitioners could begin to file petitions. USCIS believes
that the practice of filing multiple petitions in an effort to exploit
the random selection process has become more wide-spread over the past
year as fears are raised that the 65,000 H-1B cap and 20,000 cap on
master's degree exemptions for FY 2009 will be reached on April 1,
2008. Delay in issuing this regulation to consider public comment,
would not allow USCIS to ameliorate the problem by removing this
loophole in time for the April 1, 2008 filing start date. This would
adversely impact a large number of companies, in particular smaller
businesses that cannot afford to pay multiple petition fees to secure
an H-1B visa for their employees.
Accordingly, USCIS is implementing these amendments as an interim
rule effective immediately upon publication in the Federal Register.
USCIS nevertheless invites comments on this rule and will consider all
timely comments in the preparation of a final rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of a
proposed rule on small entities (i.e., small businesses, small
[[Page 15394]]
organizations, and small governmental jurisdictions) when the agency is
required ``to publish a general notice of proposed rulemaking for any
proposed rule.'' Because this rule is being issued as an interim rule,
on the grounds set forth above, a regulatory flexibility analysis is
not required under the RFA.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
E. Executive Order 12866 (Regulatory Planning and Review)
This rule has been designated as a ``significant regulatory
action'' by the Office of Management and Budget (OMB) under Executive
Order 12866, section 3(f), Regulatory Planning and Review. Accordingly,
an analysis of the economic impacts of this rule has been prepared and
submitted to the Office of Management and Budget (OMB) for review. This
rule imposes no additional costs on the public, or any regulated entity
that is subject to its provisions. This rule does not preclude any
petitioner from filing a legitimate petition, only the filing of the
same petition more than once. The race to meet the filing date of each
fiscal year has become a ritual for H-1B petitioners and USCIS expects
the 65,000 and 20,000 maximums to be met easily every year. Thus, the
volume of applications and fee income are not expected to change from
current levels. This rule may result in a fee being collected instead
of returned if the prohibition against duplicate petitions is violated,
because while in 2007 only the duplicate petition was denied if the
first one adjudicated was approved, this rule provides that both
petitions will be denied. Nonetheless, all employers and employees that
are the subject of a timely filing will have the same chance as all
others for their petition to be selected for processing. This rule does
not change that. Hence, this rule will benefit both petitioners and
alien beneficiaries by making sure that all petitioners have an equal
chance to have their petition considered. A copy of the complete
analysis is available in the rulemaking docket for this rule at
www.regulations.gov, under Docket No. USCIS-2007-0060, or by calling
the information contact listed above.
F. Executive Order 13132 (Federalism)
This rule would have no substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule does not impose any new reporting or
record-keeping requirements under the Paperwork Reduction Act.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
Officials, Health Professions, Reporting and recordkeeping
requirements, Students.
0
Accordingly, part 214 of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of
the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901 note, and 1931 note,
respectively; 8 CFR part 2.
0
2. Section 214.2 is amended by:
0
a. Adding new paragraph (h)(2)(i)(G);
0
b. Revising paragraph (h)(8)(i)(A);
0
c. Revising paragraph (h)(8)(ii)(B); and by
0
d. Revising paragraph (h)(8)(ii)(D). The addition and revisions read as
follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(G) Multiple H-1B petitions. An employer may not file, in the same
fiscal year, more than one H-1B petition on behalf of the same alien if
the alien is subject to the numerical limitations of section
214(g)(1)(A) of the Act or is exempt from those limitations under
section 214(g)(5)(C) of the Act. If an H-1B petition is denied, on a
basis other than fraud or misrepresentation, the employer may file a
subsequent H-1B petition on behalf of the same alien in the same fiscal
year, provided that the numerical limitation has not been reached or if
the filing qualifies as exempt from the numerical limitation.
Otherwise, filing more than one H-1B petition by an employer on behalf
of the same alien in the same fiscal year will result in the denial or
revocation of all such petitions. If USCIS believes that related
entities (such as a parent company, subsidiary, or affiliate) may not
have a legitimate business need to file more than one H-1B petition on
behalf of the same alien subject to the numerical limitations of
section 214(g)(1)(A) of the Act or otherwise eligible for an exemption
under section 214(g)(5)(C) of the Act, USCIS may issue a request for
additional evidence or notice of intent to deny, or notice of intent to
revoke each petition. If any of the related entities fail to
demonstrate a legitimate business need to file an H-1B petition on
behalf of the same alien, all petitions filed on that alien's behalf by
the related entities will be denied or revoked.
* * * * *
(8) * * *
(i) * * *
(A) Aliens classified as H-1B nonimmigrants, excluding those
involved in Department of Defense research and development projects or
coproduction projects, may not exceed the limits identified in section
214(g)(1)(A) of the Act.
* * * * *
(ii) * * *
(B) When calculating the numerical limitations or the number of
exemptions under section 214(g)(5)(C) of the Act for a given fiscal
year, USCIS will make numbers available to petitions in the
[[Page 15395]]
order in which the petitions are filed. USCIS will make projections of
the number of petitions necessary to achieve the numerical limit of
approvals, taking into account historical data related to approvals,
denials, revocations, and other relevant factors. USCIS will monitor
the number of petitions (including the number of beneficiaries
requested when necessary) received and will notify the public of the
date that USCIS has received the necessary number of petitions (the
``final receipt date''). The day the news is published will not control
the final receipt date. When necessary to ensure the fair and orderly
allocation of numbers in a particular classification subject to a
numerical limitation or the exemption under section 214(g)(5)(C) of the
Act, USCIS may randomly select from among the petitions received on the
final receipt date the remaining number of petitions deemed necessary
to generate the numerical limit of approvals. This random selection
will be made via computer-generated selection as validated by the
Office of Immigration Statistics. Petitions subject to a numerical
limitation not randomly selected or that were received after the final
receipt date will be rejected. Petitions filed on behalf of aliens
otherwise eligible for the exemption under section 214(g)(5)(C) of the
Act not randomly selected or that were received after the final receipt
date will be rejected if the numerical limitation under 214(g)(1) of
the Act has been reached for that fiscal year. Petitions indicating
that they are exempt from the numerical limitation but that are
determined by USCIS after the final receipt date to be subject to the
numerical limit will be denied and filing fees will not be returned or
refunded. If the final receipt date is any of the first five business
days on which petitions subject to the applicable numerical limit may
be received (i.e., if the numerical limit is reached on any one of the
first five business days that filings can be made), USCIS will randomly
apply all of the numbers among the petitions received on any of those
five business days, conducting the random selection among the petitions
subject to the exemption under section 214(g)(5)(C) of the Act first.
* * * * *
(D) If the total numbers available in a fiscal year are used, new
petitions and the accompanying fee shall be rejected and returned with
a notice that numbers are unavailable for the particular nonimmigrant
classification until the beginning of the next fiscal year. Petitions
received after the total numbers available in a fiscal year are used
stating that the alien beneficiaries are exempt from the numerical
limitation will be denied and filing fees will not be returned or
refunded if USCIS later determines that such beneficiaries are subject
to the numerical limitation.
* * * * *
Dated: March 18, 2008.
Michael Chertoff,
Secretary.
[FR Doc. E8-5906 Filed 3-21-08; 8:45 am]
BILLING CODE 4410-10-P