H-1B Filing Date for Fiscal Year 2009 Is Quickly Approaching


The H-1B Visa Category

As the most sought-after category of nonimmigrant work visa, the H-1B visa allows U.S. employers to hire foreign nationals in positions deemed “Specialty Occupations.” These positions must require (at a minimum) a relevant bachelor’s degree, and the candidate must possess such a degree (or its foreign equivalent), as well as any experience required in the position. In some instances, a combination of relevant studies and experience may be deemed sufficient.

The “Cap”

On April 1, 2008, the United States Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions with an employment start date of October 1, 2008 (the first day of the 2009 fiscal year) or later. Only 65,000 cap-subject H-1B petitions may be approved per fiscal year (6,800 of the 65,000 visa numbers are initially set aside for nationals of Chile and Singapore). An additional 20,000 visa numbers are available to holders of a master’s degree or higher from a U.S. institution of higher education. Please note that the H-1B cap does not affect employees who are extending H-1B status or employees of certain exempted employers (i.e., universities, nonprofit research organizations or government research organizations).

Impact of the “Cap” Upon Employers

Given the high demand for H-1B numbers last year, it is expected that the USCIS will determine that it has received more than 65,000 H-1B petitions by the end of the day on Tuesday, April 1. Should this occur, a lottery, which by law will include petitions received on April 2, will be held to determine which petitions will be processed. Last year, all available visa numbers of the pool of 65,000 (except those reserved for nationals of Chile and Singapore) were allocated on April 1st and 2nd. The 20,000 petition exemptions for holders of master’s or higher degrees from U.S. institutions of higher education are also expected to be exhausted quickly (last year, this allotment was tapped in one month).

In anticipation of demands that will likely meet or exceed those of last year, we strongly recommend that all H-1B petitions subject to the 2009 cap be sent to the USCIS by expedited courier on Monday, March 31. Please consider whether you have any H-1B petition needs, especially with respect to the following categories:

  • Recent graduates employed pursuant to F-1 optional practical training;
  • Trainees employed pursuant to J-1 visa status who are not subject to the foreign residency requirement;
  • Employees in the United States working in another nonimmigrant status who will be ineligible for continued employment authorization after October 1, 2008; and
  • Candidates abroad subject to the annual H-1B cap and ineligible for another type of work-authorized status in the United States.
Perkins Coie will continue to monitor the H-1B cap situation and will update you with any new information.