4/9/2009

The USCIS has just released the advance copy of the report dated April 8, 2009. It will continues to accept H-1B cap petitions and the USCIS will continue to monitor the number of petitions received for both 65,000 regular cap and the 20,000 U.S. master's degree or higher educational exemption cap. This reporter's reading of this report is that the cap did not reach at the end of the day of April 7, 2009, and the final receipt date could not be determined.

However, it goes on to say that "To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date." 

The regulation reads: "When necessary to ensure the fair and orderly allocation of numbers in a particular classification subject to a numerical limitation or the exemption under section 214(g)(5)(C) the Act, 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." 

From the reading of the regulation, if the cap indeed failed to reach yesterday or earlier, the agency is not, repeat not, authorized to select randomly the cases which had been accepted at least until yesterday. Remember that the regulation provides "from among the petitions received on the final receipt date" and not "petitions received as of the final receipt date."