Will the FY 2008 H-1B Cap be Reached on April 2, 2007 - the First Possible Day for Filing?
Immigration law practitioners and employers donít have much choice but to assume that the FY 2008 H-1B quota will be exhausted on Monday, April 2, 2007 which also happens to be the very first day for filing.
Given the history of the 65,000 cap being reached earlier and earlier every year, practitioners and employers who wait days or weeks beyond April 1 to file are very likely going to be shut out of the process until the following fiscal year. Itís the self-fulfilling prophecy phenomenon. If everyone fears that the cap will be reached on April 2, then everyone will file on April 2 and the cap will, in fact, then be reached on April 2!
Of course, thereís also no reason to file earlier than April 2. A petition for a cap-subject alien received on Friday, March 30, 2007 will be rejected, and a petition received on Saturday, March 31, 2007 will simply be processed on April 2, 2007.
If the cap is reached on the first day of filing, a random selection lottery will be held and petitions will be decided as per 8 CFR 214.2(h)(8)(ii)(B) which reads as follows:
(B) When calculating the numerical limitations for a given fiscal year, USCIS will make numbers available to petitions in the 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 date of publication will not control the final receipt date. When necessary to ensure the fair and orderly allocation of numbers in a particular classification subject to numerical limits, 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 not randomly selected, and petitions received after the final receipt date, will be rejected. †If the final receipt date is the same as the first date on which petitions subject to the applicable cap may be filed (i.e., if the cap is reached on the first day filings can be made), USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day.
(Revised 5/5/05; 70 FR 23775 ) (Underline added.)
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