H-1B Filing Date Approaching: Employers are Advised to Assess H-1B Needs Now

On April 1, 2008, the United States Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions that request an employment start date of October 1, 2008 (the first day of the 2009 fiscal year) or later. Only 65,000 cap-subject H-1B petitions may be approved per fiscal year. By law, 6,800 of the 65,000 visa numbers are allocated as H-1B1s to nationals of Chile and Singapore. An exemption from the 65,000 cap is available to holders of a master’s degree or higher from a United States institution of higher education, up to a limit of 20,000 petition approvals. Please note that only petitions that are filed on behalf of foreign nationals who have not previously been counted against the H-1B cap will be subject to this cap. Petitions on behalf of foreign nationals who have previously been counted against the H-1B cap or who are employed (or have received an offer of employment) at an institution of higher education, a nonprofit research organization, or a governmental research organization are not subject to the cap.

Given the high demand for H-1B numbers last year, it is expected that the USCIS will determine that they have received more than 65,000 H-1B petitions by the end of the day on Tuesday, April 1. Therefore, a lottery, which by regulation will include petitions received on April 2, will be held to determine which petitions will be accepted for processing. The 20,000-petition exemption for holders of master’s or higher degrees from a United States institution of higher education is also expected to be exhausted quickly. In anticipation of this, we strongly recommend that all H-1B petitions that will be subject to the 2009 cap be sent to the relevant USCIS Service Center by overnight mail on Monday, March 31. Please note that all H-1B petitions subject to the 2009 cap received by the USCIS before April 1, 2008 will be rejected.

How This Affects You

It is likely that cap-subject H-1B petitions will have to be received by the USCIS on April 1 or April 2 in order to be eligible to participate in the expected lottery. As a result, it is very important that employers review any possible need to file H-1B petitions now, especially with respect to the following categories:

• Recent graduates employed pursuant to F-1 optional practical training
• Employees in the United States working for an employer in another nonimmigrant status who will be ineligible for continued employment authorization after October 1, 2008
• Candidates abroad subject to the annual H-1B cap and ineligible for another type of work-authorized status in the United States

The volume of H-1B petition filings is anticipated to be very high; we therefore recommend that all employers who wish to file H-1B petitions that will be subject to the 2009 cap contact us as soon as possible so that we may begin preparing these petitions immediately.

Morgan Lewis & Bockius will continue to monitor the H-1B cap situation and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri       
415.442.1343                     
ajvazquez@morganlewis.com 

Lance Nagel                          
415.442.1345                      
lnagel@morganlewis.com 
 
Washington, D.C.
Eleanor Pelta                        
202.739.5050                       
epelta@morganlewis.com 

Eric S. Bord                          
202.739.6040                       
ebord@morganlewis.com

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