The Mad Dash For H-1B Visas About To Begin Again

Cap Will Likely Be Exhausted Quickly – Are You Prepared?

As of April 1, 2007, employers will again be able to file “new” H-1B visa petitions for an effective employment start date of October 1, 2007. The cap is expected to be exhausted quickly, however; so, employers need to be prepared to act.

Background

The H-1B visa category is one of the more frequently used non-immigrant visa classifications for the temporary employment of foreign workers. The H-1B visa applies to persons coming to the United States temporarily to engage in a “specialty occupation.” A specialty occupation is defined as a po-sition that requires: 1) highly specialized knowledge to perform the work; and 2) at least a bachelor’s degree (or foreign equivalent) in a specific, re-lated area of specialty. For certain in-dividuals with specialized skills and considerable work experience, academic equivalency evaluations may be obtained to establish that the individual possesses the functional equivalent of a bachelor’s degree. Under current law, an alien can be in H-1B status for a maximum period of six years at a time, with a few exceptions.

Annual Quota

The H-1B visa category is subject to a Congressionally-mandated annual cap of 65,000. This number is reduced by the Singapore/Chile Free Trade Agreements, which set aside 6,800 H-1B visas for citizens of those countries. Further, an additional 20,000 new H-1B visas are available for foreign workers who earned a master’s degree or higher from a U.S. university.

Petitions filed to extend or amend H-1B employment for foreign workers already in H-1B status and new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research orga-nizations are not subject to the H-1B annual cap.

Last year, the H-1B quota of 65,000 for FY 2007 was reached within six weeks and the quota of 20,000 for advanced degree graduates from U.S. universities was met within 12 weeks. We expect the quota to be met very quickly again this year, possibly within the first one or two weeks; therefore, it is critical that employers initiate the H-1B petition process as soon as possible so that petitions can be filed on April 1, 2007. Note that petitions are counted toward the cap as they are received by the U.S. Citizenship and Immigration Services (USCIS), not when they are approved.

Once the quota is met for FY 2007, employers will not be able to file new H-1B petitions until April 1, 2008, for an effective employment start date of October 1, 2008.

F And J Visa Holders

We strongly advise employers to proactively identify employees hired in J-1 or F-1 (student) practical training status with an employment authorization card issued by the USCIS that is valid for only one year. Employers should file H-1B petitions on behalf of these employees as early as possible in the H-1B cap cycle. If a foreign national’s employment authorization document expires before the start of the next fiscal year and the cap for the current fiscal year has been reached, a gap of employment authorization (and possible unlawful presence for that individual) could result.

The USCIS has safeguards in place for foreign nationals that extend the duration of status of any F-1 student if the employer timely files an application for a change of status. Although the USCIS has used these safeguards in the past, it has not provided such relief for the past two years and we cannot count on the USCIS to use them this year; thus, it is important to identify these employees early on.

If a recruiter is utilized in a com-pany’s search process, it is important to update the recruiter about the need to recruit and identify foreign nationals early in the fiscal year so that there is time for the employer to file the H-1B petition before the cap is reached.

Conclusion

Employers and their attorneys must work together in advance to prepare for the H-1B cap. It is important that counsel be contacted as early as possible to review H-1B filing needs. With 20 full-time immigration attorneys, Ogletree Deakins is one of the largest immigration practices in the U.S. and has established an outstanding client service reputation with multinational companies. For continuing updates on the H-1B cap and related immigration issues, visit our immigration-specific website at www.visatrax.com.

Note: This article was published in the February/March 2007 issue of The Employment Law Authority.