On Jan 10 2006

Prepare Now for Timely Filing of H-1B Petitions

Now is not the time to panic.

You still have approximately two months to gauge your company’s or firm’s anticipated hiring needs for foreign national professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2007. That date is when the federal government’s fiscal year begins, and the date that new H-1B visas become available under the annual cap. Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2007 signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 65,000 visas is reached.

If you’ve been even remotely involved in the process of hiring a foreign national professional in the past year, you already know that the H-1B cap for fiscal year 2007 was reached less than eight weeks after April 1, 2006. Each of the past several years has seen the cap being reached significantly earlier than the year before, so one could reasonably assume that the pent-up demand for new H-1B workers will result in next year’s cap being reached within the month of April. It even may not be far-fetched to predict that all H-1B numbers will be used up within the first few days of April. Certainly, there is nothing to be gained by waiting to file an H-1B petition, and everything to lose by failing to file it at the first possible opportunity (this year the first business day of April is Monday, April 2, so petitions should be sent by overnight courier on Friday, March 30 to ensure acceptance on the first available day).

The H-1B program enables U.S. employers to hire foreign nationals in what are termed ‘specialty occupations,’ which generally means that the job requires a minimum of a U.S. bachelor’s degree or equivalent foreign degree. Employers file H-1B petitions on behalf of engineers, physicians, scientific researchers, lawyers, computer programmers, analysts, and numerous other professional positions that require theoretical expertise typically gained by study culminating in a university degree. The ever-shrinking window of the H?1B filing period indicates that U.S. employers continue to have a great need for foreign nationals to work in these fields.

In fact, many people involved with immigration anticipate that Congress will act in 2007 to increase the available number of H-1B visas. The Senate was prepared to address this issue last year, but the House did not act on it. This year, the Senate once again appears amenable to passing a comprehensive immigration act (one that deals not only with enhancing enforcement of immigration laws, but that also addresses the cumbersome and lengthy processes that affect legal immigrants seeking to work and reside in the U.S. and the businesses that want to hire them). It remains to be seen whether the House will act likewise; but given the short time between now and the beginning of April, it would be asking a lot to expect any relief for the H-1B cap in the next two months. In the short term, employers are well advised to proceed as if the 65,000 H-1Bs are all that will be available for fiscal year 2008, and then to continue to advocate with their Congresspersons for increased numbers during the year.

There are some foreign nationals who will not be subject to the H-1B cap. These include individuals who already have been counted toward the cap in a previous year and have not been outside the U.S. subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities, are exempt from the H-1B cap. A trap for the unwary is the failure by a cap-subject employer to recognize that a prospective foreign national employee who is currently working for a cap-exempt employer (and who, thus, currently possesses an H?1B visa) will now have to be counted for the first time against the cap.

Also, there is a separate cap of an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university. Based on previous experience, this cap will take longer to be reached than the general H-1B cap, but it also is likely to be hit well before the end of summer.

So, what should your company or firm be doing in these next two months to ensure timely filing of new H-1B petitions? All graduates of non-U.S. universities will need an appropriate equivalency evaluation of their degree, so if these haven’t been performed yet, they should receive high priority. Labor condition applications need to be filed with the U.S. Department of Labor, and the appropriate records in relation to these must be created and placed in a file. And the H-1B petitions themselves, with all supporting documentation, must be created and signed, and checks for filing fees to U.S. Citizenship and Immigration Services requested and issued.

By the middle of March, your goal should be to have all petitions prepared and ready to go for submission on March 30. Any plan of action short of this may result in the sudden realization that the H-1B cap for fiscal year 2008 was reached before your petition arrived, and your hiring plans are now at the mercy of Congress’s willingness to raise the cap before April 2008.

Then it will be the time to panic.