Employers need to act urgently to identify any individuals they wish to sponsor for H-1B status. The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on April 1, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. April 1 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. Cases actually need to be mailed on March 31 to secure receipt by U.S. Citizenship and Immigration Services (USCIS) on April 1. 

Employers that received TARP funds also must be sure they are in compliance with the new requirements of the American Recovery and Investment Act of 2009 (the “stimulus bill”) if they seek to sponsor H-1B workers. As reported in the February 2009 issue of the Immigration eAuthority, the stimulus bill requires recipients of TARP funds or Federal Reserve loans to comply with requirements normally placed on H-1B dependent employers. Among other things, such employers must not displace similarly employed U.S. workers and must take good faith steps to recruit U.S. workers for the job for which the H-1B worker is sought. If the statute is interpreted literally, employers subject to this provision need only meet the additional requirements for new employees; individuals already employed in F-1, TN, L-1, J-1 or H-1B status appear to be exempt from the dependent employer requirements.

Note: This article was published in the March 2009 issue of the Immigration eAuthority.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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