With the April 1, 2008 filing opportunity for “new” H-1B petitions looming, employers can begin planning now to try to obtain one of the limited number of H-1B visas available for the next federal fiscal year, which runs from October 1, 2008 to September 30, 2009.
A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. masters graduates). It does not apply to one who already has an H-1B visa or status. An exception that private sector employers should note, however, is that an H-1B foreign national currently working for a university in most cases will be subject to the cap. Universities are exempt from the H-1B cap, and when a foreign national leaves a university for the private sector, he/she then becomes cap-subject.
The H-1B visa category is for the temporary employment of foreign nationals who will work in “specialty occupations.” Specialty occupations generally are those jobs for which at least a bachelor’s degree is required. Examples include engineers, accountants and many information technology positions.
If the April 1, 2007 rush to submit H-1B applications was any indication of the demand for H-1B visas, April 1, 2008 promises to be just as interesting. Employers filed approximately 130,000 petitions on April 1, 2007 for just 85,000 visas. Although there were fewer than 20,000 master degree petitions, U.S. Citizenship and Immigration Services conducted a random selection to allocate the 65,000 available bachelor-level visas. It then took just 29 more days for employers to reach the 20,000 cap for masters degree petitions. Therefore, within just 30 days, the entire 2007-2008 allocation of H-1B visas was complete.
For this year’s filings, CIS informally has discussed a pre-filing lottery, through which employers would submit requests before April 1, 2008 expressing their interest in filing H-1B petitions. Then, CIS would conduct a random selection to allocate the 85,000 visas and notify employers of a timeframe within which to file their petitions. The goal of such a pre-filing lottery would be to avoid the logistical burden of April 1, 2007 when there were reports of courier service delivery trucks lined up at the CIS service center. CIS refused access to some couriers on April 1 and advised them to return on April 2. Needless to say, this caused significant stress and concern for employers and foreign nationals who tracked their shipments and discovered that their petitions arrived a day late. Fortunately, CIS acknowledged the unanticipated logistical problem and conducted its random selection among petitions received on April 1 and 2. If CIS does not implement a pre-April 1 lottery system, employers will need to ship their H-1B petitions on March 31 to ensure an April 1, 2008 delivery. CIS will reject any “new” H-1B petition received before April 1.
As noted above, for “new,” cap-subject H-1B petitions, employers can file April 1, 2008 for an October 1, 2008 effective date. In the case of a new hire, such as a foreign national abroad who has never had an H-1B visa, the employer will need to wait until October 1 for that worker to enter the U.S. and begin working. Employers also need to monitor the employment authorization of F-1 students who have graduated and are working pursuant to Optional Practical Training. In many cases, such work authorization expires in the June through August timeframe, thereby leaving a gap in employment authorization between the expiration of the student authorization and the October 1 H-1B effective date. In some situations, the F-1 student may need to leave the U.S. and await the October 1 effective date before returning to employment. With careful planning, employers can take proactive steps to minimize the impact of the H-1B cap on their hiring decisions and on the continued employment of recent graduates.