In 2008, 163,000 H-1b cap petitions were received by USCIS between April 1st and April 7th for fiscal year 2009. Since only 65,000 new H-1bs can be approved in any fiscal year, USCIS faced the problematic situation of determining which cases should be adjudicated and which should be returned. USCIS used a random selection process (also known as a lottery) to choose which cases to review and rejected any cases that were not selected. As a result of this predicament, the Department of Homeland Security issued new regulations. If more than 65,000 cap-subject H-1b petitions are received within the first five business days after the first date that cap subject petitions can be submitted, USCIS will conduct a random selection process to determine which cases will be considered. Those selected will be adjudicated. All other cases will be returned with their applicable fees. What this regulation means as a practical matter, is that a case received on Thurs April 5th, is treated the same as if it was received on Mon. April 2nd.
While we do not expect the H-1b cap to be reached between April 2nd and April 6th for FY 2013, this information should be kept in mind as employers determine when they plan to file new cap-subject petitions.