As reported in a recent Ogletree Deakins Immigration E-Alert, employers will be able to file “new” H-1B petitions on Friday, March 30, 2007, to be received by immigration on Monday April 2, 2007 for an effective employment start date of October 1, 2007. There is speculation that the annual quota of 65,000 for new H-1Bs will be met on the first day applications are accepted by the USCIS, which is Monday, April 2, 2007.

If a sufficient number of petitions are received and the quota is exhausted on the first day, the USCIS will apply the "random selection" lottery to all petitions received on the first and second days petitions are received. According to immigration regulations, the 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 computer-generated. If the final receipt date is the same as the first date on which petitions subject to the cap may be filed (i.e., if the cap is reached on the first day filings can be made), the USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day.

As a result, if more than 65,000 applications are submitted on the first day petitions will be accepted and the USCIS applies the random selection lottery, there will be no guarantee that all petitions timely submitted will be accepted for processing.

Please note that petitions filed to extend or amend H-1B employment for foreign workers already in H-1B status and new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the H-1B annual cap.