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The 2008 H-1B filing season is imminent, and now is the time for employers to aggressively plan and organize for what may turn out, absent legislation, to be the worst April 1 H-1B cap rollout in memory. Employers cannot assume that numbers will be available beyond the beginning of April.
As background, current immigration law contains a "cap" of 65,000 new H-1B approvals each fiscal year, of which 6,800 are set aside for the H-1B1 visa program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. In addition to the standard H-1B cap availability of 58,200, the H-1B Visa Reform Act of 2004 makes available 20,000 additional H-1B numbers for foreign workers with a master's or higher degree from a U.S. academic institution. FY 2008 begins on October 1, 2007; the USCIS will begin accepting H-1B petitions for FY 2008 on April 1, 2007.
Key issues for employers to remember this year:
Identifying Petitions Ripe for Filing: Human Resources professionals should make a top priority of the process of identifying potential applicants. Of the potential beneficiaries for H-1B petitions, most critical are current employees or new hires with an immigration status that will not allow them to work continuously through October 1, 2008, or those for whom a change of status is necessary in planning for a possible green card. These may include:
| F-1 students |
J-1 exchange visitors |
| H-3 trainees |
L-1B specialized knowledge employees |
| TN NAFTA professionals |
L-1A managers (who do not qualify for permanent residence as
multinational managers) |
Calendar Issues: Problematic this year is the fact that April 1st occurs on a Sunday, and both the Passover and Easter holidays begin the first week of April. Last year, USCIS advised that all mail received on the weekend is processed on Monday, but there is confusion this year as to whether petitions received on Saturday, March 31st, will be accepted by USCIS as validly filed. We are in constant contact with the Immigration Service on this and other unresolved questions, and will be able to advise our clients as we get closer to the filing period.
LCA Issues: LCAs may only be processed six months in advance of their requested start date, and may only be granted for a maximum period of three years. H-1B petitions may only be approved for a period covered by a valid LCA. Employers should consider obtaining LCAs before April 1st, even though that will result in H-1B petition approvals which will not cover a full three years. Employers will gain an advantage by having petitions ready to send to USCIS on March 30th, rather than sending the petitions on April 2nd and losing a full business day.
Reminder: The following are not subject to the cap: H-1B petitions for amendment or extension of status, including new employers, and requests for concurrent H-1B employment; petitions filed by exempt organizations, including institutions of higher education, nonprofit research organizations or entities related or affiliated with an institution of higher education, or a nonprofit research organization or governmental research organization; H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and, H-1B petitions for beneficiaries who were counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six-year period.
Proskauer Rose LLP counsels corporate clients and their employees in all areas of immigration, nationality and consular law. This includes obtaining work authorizations and visas to enable companies to hire aliens or transfer personnel between nations; compliance with and defense of anti-discrimination and unlawful immigration practices; and advice and appearances in special circumstance matters such as asylum claims and removal proceedings. Much of the work involves obtaining appropriate non-immigrant or immigrant visas to enable corporations to transfer executives, managers, persons with specialized knowledge or other key personnel temporarily or permanently to the United States.
For more information contact: David Grunblatt
This News Flash is a service to our clients and friends. It is designed only to give general information on the developments actually covered. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice or render a legal opinion. |
