On April 1, 2008, the U.S. Citizenship and Immigration Services ("USCIS") will accept new H-1B petitions for employment beginning on October 1, 2008, which is the beginning of fiscal year 2009 ("FY2009"). Last year, the USCIS reached the annual numerical limit on new H-1B’s (“the H-1B Cap”) on the very first day that new petitions could be filed. The agency received a record 150,000 cap-subject H-1B petitions on April 2, 2007, far exceeding the 58,200 available. The cap-exemption of 20,000 H-1B visas for workers who hold advanced degrees from a U.S. institution, were exhausted by April 30, 2007.
Due to the continued high demand for H-1B visas, we anticipate that the H-1B cap for FY2009 will also be reached within the first few days of April 2008, if not the first day. Under USCIS regulations, if the number of H-1B petitions received on the first day exceeds the number available, the USCIS will select petitions through a random, computerized "lottery." In this situation, only those petitions received on the first and second day of filing will be included in the lottery, and petitions received after April 2, 2008 will be rejected.
Note that individuals seeking H-1B status are not subject to the H-1B cap if one of the following applies:
- The individual has held H-1B status within the last six years, and has not used the total 6 years normally allowed for H-1B status;
- The petitioning employer is a nonprofit research organization or a governmental research organization; or
- The petitioning employer is an institute of higher education or related or affiliated research institute.
How This Affects You
We strongly recommend that employers start now to prepare for the upcoming H-1B cap filings so that the petitions are ready for filing well in advance of the April 1, 2008 date. Persons for whom H-1B petitions will likely need to be filed include new college graduates in F-1 student status. Many of these new graduates may already be working at the employer pursuant to Optional Practical Training (“OPT”). Because OPT is granted for no more than one year, in most cases it will be necessary to change the employees to H-1B status. Employers may also need to file cap-subject H-1B petitions for newly-hired employees living abroad, and should review employees in other nonimmigrant classifications, such as TN or L-1, who may benefit from switching to H-1B classification.
The USCIS must receive all cap-subject H-1B petitions on April 1, 2008 for the best chance of securing an FY2009 H-1B. Immigration attorneys will be finalizing documents throughout the month of March 2008 for mailing petitions via overnight mail on Monday, March 31, 2008. Note that the April 1st date is the first date the USCIS will accept petitions
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