H1B Cap Filing Season is Upon Us, Now What?!

The USCIS publishing the Interim Final Rule yesterday on March 19, 2008 in the Federal Register that they plan to first use up all the 20,000 U.S. Masters cap cases and only then use up the 65,000 general quota H1B numbers has a problem that no one seems to focus on! While on the one hand, it may appear to make sense on some strange level to use up the MS quota numbers first, the purpose, at least in part with the law would seem to have been to give more time for U.S. Master’s students to file their H1B petitions during the fiscal year.

Now, these students with an advanced U.S. degree will need to rush and file their cases within the first week or most likely lose out! It is a bigger problem for most of them who will not have completed their course and graduated until May 2008. With this major substantive change in the law, surprisingly, the USCIS refers to it as non-substantive and procedural, therefore not requiring any public comment under the Administrative Procedures Act or APA. Yet this rule ignoring the APA seems to take away a major benefit that was intended specifically for U.S. Master’s graduates when universities and Congress passed the law to add 20,000 H1B numbers to the H1B annual quota.

The troubling part is that the time and effort it will take to sue the DHS / USCIS on this issue may help most Master’s students in the future but it seems a bit late for this year considering that there are less than 2 weeks left for the USCIS to receive all the new H1B cap subject cases by April 1, 2008. An emergency class action injunction is possible but who has the time and effort to file it and ensure that their H1Bs are properly prepared and filed in that time as well?