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LABOR & EMPLOYMENT LAW — 4/03/08

USCIS announces interim final rule banning H1-B multiple petitions

Days after Microsoft Chairman Bill Gates testified before the House Committee on Science and Technology on US competitiveness and the need to raise the cap on H1-B visas, legislators acted quickly on his requests, introducing bills in Congress to allow more highly skilled professionals from other countries to work for companies in the United States. US Citizenship and Immigration Services (USCIS) also responded by introducing an interim final rule prohibiting employers from filing multiple H-1B petitions for the same employee. However, the rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need.

Called "gaming the system," according to national media outlets, the situation occurs when companies send multiple applications for the same employee in order to have a have a better chance with USCIS's computerized random selection process. The rule, effective March 24, 2008, also places petitioners' applications that are filed during the first five business days available for filing petitions in a given fiscal year (FY) into USCIS's random selection process, rather than just those petitions filed in the first two business days. Written comments on the rule, which can be viewed at the following website, must be submitted on or before May 23. USCIS is set to begin accepting H1-B visa applications for FY 2009 on April 1.

H1-B visas are given to US companies seeking to hire nonimmigrant aliens in specialty occupations of distinguished merit and ability when such workers are in limited quantities in the United States. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology and business specialties, etc). There is an annual cap on H-1B visas of 65,000 workers per fiscal year. The H1-B program does not specify that a sponsoring company must be headquartered in the United States, so long as it has US operations. The program is managed by three federal agencies (the Department of Labor (DOL), USCIS and the State Department) and it is USCIS's responsibility to adjudicate and approve petitions. Last year, the supply of H1-B visas were exhausted on the first day applications were accepted.

USCIS is making changes to the program as part of the Bush Administration's series of reforms to improve border security and address immigration challenges. The Administration had requested that "the Department of Homeland Security and the Department of Labor study and report on potential administrative reforms to visa programs for highly skilled workers."

Separately, legislators introduced bills designed to address the H1-B cap, which US companies assert is too small. On March 13, Representative Gabrielle Giffords (D-Ariz) introduced the Innovation Employment Act (H.R. 5630), which would increase the H1-B visa cap to 130,000 in its first year of passage, with a provision that would allow the cap to increase up to 180,000 in future years. The proposed legislation would also uncap H1-B visas for foreign graduate students attending US colleges who study science, technology, engineering and math and who will be work in one of those fields. Currently, there is a 20,000-a-year cap on visas for graduate students in all fields. The bill would also institute safeguards in the program by increasing penalties for H1-B fraud by allowing the DOL to reject all applications that are clearly fraudulent (this is in addition to the existing rule allowing the agency to reject applications that are inaccurate). Media reports indicate that under Gifford's bill, companies would not be allowed to hire H1-B workers and then outsource them to other companies. Companies with more than 50 employees that have more than half of their staff as H-1B workers would also be prohibited from advertising for more H1-B workers. The proposed bill can be found at the following website.

Meanwhile, Representative Lamar Smith (R-Texas) introduced the Strengthening United States Technology And Innovation Now (SUSTAIN) Act, which would raise the annual cap for H-1B visas to 195,000 for 2008 and 2009.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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