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H-1B Preparations


Now is the time to evaluate your company’s anticipated hiring needs for H-1B 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 on which 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.

Our clients who have been involved in the process of hiring a foreign national professional in the past years 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 we anticipate the realistic possibility that the pent-up demand for new H-1B workers will result in next year’s cap being reached within the month of April – and rumors abound that all H-1B numbers might be used up within the first few days of April. Since 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, we are planning to have all clients’ petitions prepared and ready to file by the end of March. This year the first business day of April is Monday, April 2, so we plan to send all cap-subject petitions by overnight courier on Friday, March 30 to ensure USCIS acceptance on the first available day.

As you evaluate your company’s H-1B hiring and transition needs over the next two months, please keep our office apprised of all new hires needing H-1B status prior to October 1, 2008. Examples would include F-1 students hired with Optional Practical Training that expires during FY2007, or L-1B nonimmigrants who will have spent five years in that status as of a date in FY2007. Prompt action is needed to ensure that we can prepare the petition and supporting documents (including credential evaluations if necessary) in an efficient and timely manner.

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 newly-elected House will be sympathetic to immigration reform, 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, we are advising our clients 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 representatives in Congress for increased numbers during the year.

As before, 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. 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.

Please contact Ralf D. Wiedemann or another Klasko Immigration Law Partners, LLP attorney with any questions or concerns you may have about the H-1B process or any information contained in this Client Alert.

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