On April 1, 2009, the United States Citizenship and Immigration Services ("USCIS") will accept new H-1B petitions for employment beginning on October 1, 2009, which is the beginning of fiscal year 2010 ("FY2010"). 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 more than150,000 cap-subject H-1B petitions on April 1, 2008, 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 within the first week of April 2008.
Due to the continued high demand for H-1B visas, we anticipate that the H-1B cap for FY2010 will also be reached within the first few days of April 2009, 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, 2009 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, 2009 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"). 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, 2009 for the best chance of securing an FY2010 H-1B. Goeschl Law Corporation will be finalizing documents from now through the end of March 2009 to ensure all H-1B Cap petitions are mailed via overnight courier service on Tuesday, March 31, 2009. Note that the April 1st date is the first day the USCIS will accept FY2010 Cap petitions.
We will provide further information as soon as it becomes available.
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