The Annual Cap

On April 1, 2009, the U.S. Citizenship and Immigration Services ("USCIS") will begin accepting cap-subject H-1B petitions with an employment start date of October 1, 2009 (the first day of the government’s 2010 fiscal year) or later. Only 65,000 cap-subject H-1B petitions will be approved per fiscal year, with 6,800 of the 65,000 visas set aside for nationals of Chile and Singapore. An additional 20,000 visas (not included in the 65,000 cap) are available to beneficiaries holding a master’s or higher degree from a U.S. institution of higher education. Note that the H-1B cap does not affect employees who are extending their H-1B status or employees of certain exempted employers (i.e., universities, nonprofit research organizations or government research organizations).

Given the high demand for H-1B visas, it is likely that USCIS will again receive more than 65,000 H-1B petitions by Wednesday, April 1. Last year, a random lottery system was used to select which petitions would be processed. A separate lottery system was used to allocate the 20,000 visas available to those holding a master’s degree or higher from a U.S. institution of higher education. Last year’s lottery included all H-1B petitions received during the first five days of the application period. While USCIS has not yet released its guidance for filing this year, it is expected that a similar five-day window will be used.

Strategies

1. Assess your needs in advance.

Consider whether you have any H-1B petition needs, especially with respect to the following categories:

• Recent graduates employed pursuant to F-1 optional practical training (note that a 17-month employment eligibility extension may be available to F-1 employees who have a degree in science, technology, engineering or mathematics, and who are working for employers enrolled in E-Verify.)

• Trainees employed pursuant to J-1 visa status who are not subject to the foreign residency requirement;

• Employees in the U.S. working under another nonimmigrant visa category who will be ineligible for continued employment authorization sometime after October 1, 2009; and

• Candidates abroad subject to the annual H-1B cap and ineligible for another type of work-authorized visa in the U.S.

2. Be prepared to file early.

Last year, approximately 163,000 petitions were received in the first five days of filing, including more than 31,000 filed under the advanced degree category. Accordingly, all H-1B petitions subject to the cap should be sent to USCIS by expedited courier on Tuesday, March 31, 2009.

3. Consider the alternatives.

Given the likelihood that the total allotment of H-1B visas for fiscal year 2010 will be used up as of April 1, it is prudent to consider whether an employee might be eligible for another visa category. Careful consideration should be given to the timing of an application in a different visa category to avoid inadvertent conflicts.

If you have any questions about any of the issues raised here, would like assistance in preparing your H-1B petition or would like to discuss possible alternatives to the H-1B visa category, please contact www.bertoni-law.com at your earliest convenience.

Written by Paul Philippe Bertony, Attorney at Law.