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This information has been prepared for clients of the Law Offices of Jay I. Solomon. You are welcome to browse, but should consult your own attorney for legal advice. posted April 9, 2008 H-1b Cap reached - Master's exemption exhausted"Random selection" to beginThe USCIS announced yesterday that more than enough filing were received by April 7th to exhaust the H-1b cap as well as the exemption for those with advanced degrees from U.S. Universities. The next step will be a random selection to determine which applicants will benefit from the U.S. advanced degree exemption. 20,000 applications will be selected from among those claiming the exemption. After the beneficiaries of the cap exemption are determined, a second random selection will begin to allocate the remainder of the 65,000 H-1b cap. Applicants who applied for cap exemption and were not selected will have a second chance in the general random selection - unless it was determined that they were not eligible to claim the cap exemption. The USCIS is not yet predicting when the random selection will be completed, and has not announced how many applications were received. See their announcement.
posted February 15, 2008 April 1, 2008 - H-1b "Lottery" Begins Again!(...and we will run out of H-1bs quickly)
USCIS to accept new H-1b filings beginning April
1, 2008
On April 1, 2008, the U.S. Citizenship and Immigration Services
will start accepting filings of new H-1b petitions for the fiscal year
which begins on October 1, 2008. There is an annual "cap" on
new
petitions. Less than 65,000 can be approved subject to the cap.
An additional 20,000 petitions can be approved for "cap
exempt"
aliens (i.e. those who have masters degrees from U.S. universities.)
Last year the "cap" was reached the first day! The
"extra" H-1bs for those with U.S. master's degrees were used
up within 30 days.
If more than 65,000 H-1b cap subject petitions are received on April
1st, the USCIS will conduct a lottery to select "winners" from
all those received by that date. Applications received after the
date the cap is reached will be returned. Prediction:
What this means to you:
If you have employees who will be needing H-1b sponsorship any time
between now and October 1, 2009, you must be prepared to file an H-1b
petition on April 1, 2008! This includes current non U.S. employees who are not now in H-1b status,
and whose employment authorization will end before October 1, 2009.
Plan on filing April 1st for F-1 students with optional practical
training, to keep them employed after the expiration of
their current employment authorization.
A new H-1b petition will grant H-1b status no earlier than October 1, 2008. An employee whose current employment authorization expires before that date will have a "gap" and cannot be employed between the expiration of their current authorization and the start of their H-1b status.
Consider filing H-1b petitions for employees with other types of
immigration status - even if their employment authorization extends
beyond October 1st, 2008. It may not be possible to extend their status
later. We can offer advice as to particular situations.
Once the H-1b cap is reached, the USCIS will no longer accept new cap
subject applications for H-1b status for the fiscal year which begins
October 1, 2008 and ends on September 30, 2009.
Not every H-1b petition you file by April 1st will be accepted for processing - and it is likely that NO cap subject H-1b petitions will be accepted after April 1st - except possibly for those with U.S. master's degrees.
What you should do now:
Identify any current employees who have temporary work authorization
such as F-1, J-1, J-2, L-2 or E. In some cases you may want to
consider filing H-1b petitions for L-1a or L-1b employees to avoid the
five or seven year limit on L-1 stays.
Notify your recruiters that before offering employment to new graduates
with optional practical training, they should verify that employment
authorization extends at least until September 30, 2008. They should
notify HR immediately so that an application for H-1b change of status
can be filed. Once the cap is reached consider offers only to
those who have U.S. masters degrees, or be prepared to employ new
student hires only for the term of their practical training.
Prepare for the possibility that over half of the H-1b petitions filed on April 1st may not be selected for processing. Contingent plans may be made to transfer those not selected to overseas offices or otherwise deal with interruptions in employment eligibility.
As soon as you identify current employees or new hires who will need
H-1b sponsorship, notify our office to begin
process.
If you are considering premium processing for pending applications for H-1b or L-1 status, make your decision as soon as possible. Premium processing may cease to be available by April 1st. Because L-1b employees are limited to five years, and H-1b employees may be extended indefinitely once a preference petition is approved, consider filing petitions to change your L-1b employees to H-1b. Don't wait until the fourth year - as the chances of any particular application being selected in the H-1b lottery may be less than 50%. If you you may be filing labor certifications applications for employees currently in TN status, consider filing for change to H-1b status now. "Dual intent" (immigrant and nonimmigrant) is consistent with H-1b status - not with TN. Therefore, renewing TN status may be difficult once the labor certification/preference process begins.
FACTS
You can continue to file petitions for aliens already in H-1b status who are changing employer, taking a second job, changing the terms of employment, or extending their stay. An alien who previously had an H-1b within the last six years, and who has not left the U.S. for over a year, is not subject to the "cap. There are reserved H-1b numbers for people from Singapore and Chile. If your employee is from Singapore or Chile, H-1b visas should be available well into next fiscal year. Australians who would qualify for H-1b will often qualify for E-3 visas which are not subject to the same cap. Canadians and Mexicans may qualify for TN visa status. Employees of institutions of higher education, and of some non-profits affiliated with institutions of higher education may not be subject to the H-1b cap - until they change employers. There is a six year limit on the total amount of time an alien can spend in the U.S. in H-1b status, unless ...
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