We run an IT consulting business for employers and are scheduled to file a number of FY 2009 H-1B cap cases in April 2008. I understand that in previous FY 2008 H-1B cap filing, employers filed multiple H-1B petitions for the same foreign worker for the same position and some were successful in obtaining H-1B in the lottery. What are the chances that the same opportunity may be available in FY 2009 H-1B cap filing?

The United States Citizenship and Immigration Services (USCIS) is predicting that the FY 2009 H-1B cap numbers are likely to run on the first day, April 1, 2008 (Tuesday). As of early February, 2008, it appears that the agency may have to go through a random selection lottery process again this year. The USCIS recognizes the problem of multiple petition filing for the same employees by the same employers and has released information that this year the agency intends to sort out such multiple filings and reject or deny all of them. It must be a challenging task for the Service Centers to undertake such work, but it is obvious that, unlike the previous year, the risk of filing multiple petitions by the same employer for the same employee for the same positions will be substantially high since the USCIS has been developing so-called “account system” of immigration benefits processing and adjudication. Again, at this point, no one knows how far the agency has gone to develop the account system. One of the accounts the agency was expected to develop was the employer account databases. However, there is a legal issue as to whether the USCIS can either reject or deny the multiple H-1B petitions for a given alien by the multiple different employers for different positions. Such multiple filings will not give any benefit to a given employer, but, from the perspectives of the alien employees, the chance of random selection may increase substantially. It is uncertain whether the agency will expand their policy against multiple filings by the multiple employers, but in the event they adopt such policy, the agency may face legal challenge in courts by the U.S. employers. From each employer’s perspectives, it may be construed an illegal deprivation of their rights to petition for a required foreign worker, particularly when each employer had no knowledge of other employers’ filing of the H-1B petitions for the same employee. This will be an interesting question to watch ahead.

My wife got H-1 approved in Feb 2007 (from H-4), but, due to health reasons, she is not on payroll. She is planning to start working next year. Is it legal to stay on H-1 without being on payroll? Or is it better to change the status to H-4?

Generally, after the USCIS has approved the change-of-status for a person to H-1B, it is not lawful to remain in the U.S. without working for the H-1B employer, unless the individual is considered to be an employee by some other law/policy allowing time off, like possibly the FMLA in this type of situation. However, if your wife never became an employee, then she could not claim H1B status. Failure to maintain status could prevent such a person from filing and obtaining the I-485 approval for her Green Card later. This is especially true in cases where the total time out of status exceeds 180 days. You must discuss the risks and plan a course of action to minimize the damage that may already accrue to her in this type of situation.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.