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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. April 1, 2010 - H-1b "Lottery" Begins Again!
USCIS to accept new H-1b filings beginning April
1, 2010
On April 1, 2010, 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, 2010. 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.)
For fiscal years 2008 and 2009,
the "cap" was reached at the beginning of April! The
"extra" H-1bs for those with U.S. master's degrees were used
up within weeks. For fiscal 2010, the cap was not reached until
December - nine months before the end of the fiscal year.
Applications received after the
date the cap is reached will be returned. Applications received on
the date the cap is reached will be subject to a lottery selection
process. Prediction:
What this means to you:
If you have employees who will be needing H-1b sponsorship any time
between now and October 1, 2011, you should be prepared to file an H-1b
petition on April 1, 2010 or as soon thereafter as possible. This
includes current non U.S. employees who are not now in H-1b status,
and whose employment authorization will end before October 1, 2011.
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, 2010. An employee whose F-1 or J-1 current employment authorization expires before that date and for whom an H-1b petition is filed while they still maintain employement authorization, will have their employment authorization automatically extended through October 1, 2010 (or the date of adjudication, if their H-1b petition is rejected.)
Consider filing H-1b petitions for employees with other types of
immigration status - even if their employment authorization extends
beyond October 1st, 2010. 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, 2010 and ends on September 30, 2011.
What you should do now:
Identify any current employees who have temporary work authorization
such as F-1, J-1, J-2, L-2, E or TN. 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 an H-1b petition may be filed on
their behalf. They should
notify HR immediately so that an application for H-1b change of status
can be promptly prepared and filed.
Contact our office.
As soon as you identify current employees or new hires who will need
H-1b sponsorship, notify our office to begin
process.
Petition for L-1b employees you want to keep beyond five years. 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 in the future is not guaranteed, and may be less than 50% if H-1b cap demand increases to historic levels again. Petition for some TN employees. If you may be filing labor certification 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 - provided their previous employment was not exempt from the H-1b cap. 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. 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. 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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