H-1B Updates – Via AILA

VIA AILA

USCIS has confirmed that if USCIS determines that they have received
a sufficient number of cases in the first five business days of April
to reach the cap, then the “lottery” will be based on petitions
received all five days. USCIS will not begin to issue receipts,
however, until a determination is made that sufficient H-1B petitions
have been received within the first five business days of April, ending
April 7, 2009. After the “lottery” is conducted, the USCIS will then
issue receipts for those cases which are selected, and the receipts
will likely all have the same receipt date, April 8, 2009. USCIS has
indicated that guidance will be issued to explain that all petitions
received between April 1, 2009, and April 7, 2009, will have the same
receipt date. This is important for those F-1 beneficiaries whose OPT
will expire between April 1st and April 7th so that Designated School
Officers will know that an H-1B petition was timely filed and that a
beneficiary may be eligible for cap-gap employment authorization or
status based on the actual filing date.

As the regulation provides, if USCIS concludes that insufficient
H-1B petitions have been received within the first five business days
of April, USCIS will continue to receive and accept petitions until the
day upon which USCIS concludes that a sufficient number of petitions is
reached. USCIS will then conduct the lottery for those cases received
on the last day. While USCIS believes that the cap will be reached
before October 1, 2009, they are not able to make any further
predictions, although they have heard from various stakeholder groups
(including AILA), that fewer petitions are expected to be filed during
this H-1B cap season.