Employers should file H-1B petitions for foreign national employees with the U.S. Citizenship and Immigration Services (“USCIS”) on April 1, 2008. For most employers, new H1-B petitions are subject to an annual limit of 65,000. Last year, this cap for the entire year was reached on the first day of the filing period, and we anticipate that the volume of filings will be the same or more this year. Thus, employers must be prepared to submit their petitions within this one day window, on April 1, 2008, or be prevented from filing until next year. There also is a cap of 20,000 for foreign nationals with U.S. advanced degrees. This separate cap was reached within four weeks of the start of the filing period, and we expect the volume of these petitions to increase this year. Employers should be prepared to file these petitions on April 1, as well.
If USCIS receives more petitions on the first date than there are available numbers, it will hold a lottery to determine which cases may proceed to be adjudicated. It will return the petition and filing fees for those not selected.
A new H-1B petition is needed if the beneficiary is a foreign student or exchange visitor who is working for your company in “practical training.” A petition also is needed if the employee was recruited abroad and waiting to enter the U.S or if the foreign national employee has never held H-1B status. Note that certain categories of petitions are exempt from the cap, including
- petitions filed for employment at an institution of higher education or a related or affiliated nonprofit organizations, a nonprofit research organization or a governmental research organization
- petitions seeking extension of H-1B status
- petitions seeking H-1B transfer from another employer, except when the previous employer was exempt from the cap
- subject to limitations, other petitions where the beneficiary held H-1B status in the past even if he or she holds another status now or is out of the country
Again, employers should prepare and file their petitions on April 1, 2008. Otherwise, if the petition is subject to a cap, the foreign national employee will not be authorized to work in the U.S. and the employer will have to wait until year.