By:  LINDSEY O’NEILL, ESQ.

U.S. businesses utilizing the H-1B program should be aware of the new cap on the number of visa petitions allowed for fiscal year 2009.  The new rule prohibits employers from filing multiple H-1B petitions for the same employee.

For those of you who do not already know, the H-1B program is one of several “temporary worker” nonimmigrant visa programs.  It allows U.S. based companies to employ foreign individuals in the U.S. for certain “specialty occupations” on a temporary basis including scientists, engineers, and computer programmers.   The demand is very high in the U.S. for these skilled workers needed particularly for high tech companies and hundreds of thousands of applications are filed each year.  However, U.S. law limits the USCIS from granting no more than 65,000 new H-1B visas per fiscal year, with a few limited exceptions.  In recent years, the cap on petitions has been easily met within the first few days of USCIS accepting applications.

Since there are more applications received than there are allowable visas, USCIS in part utilizes a random selection process in reviewing applications.  To increase their chances at winning the “lottery” for a petition, some employers were playing the numbers game and filing multiple petitions for the same prospective employee in an effort to increase the chances of being one of the lucky recipients.  Given the inherent unfairness in the game, the new rules cap the number of petitions that may be filed for any one employee.  The cap rule is intended to level that playing field and ensure businesses have an equal chance to obtain an H-1B visa.    

Learn more about the 2009 H-1B and H-2B visa programs from the USCIS.  See USCIS Fact Sheet and Questions and Answers about the new rule.