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H-1B Visa Alert

    Client Alerts
  • January 16, 2007

As of April 1, 2007, employers can file H1-B temporary (professional)  worker petitions for all new workers (that is, workers who are subject to the Congressionally mandated cap of 65,000) requesting an employment start date of October 1, 2007, or later (Fiscal Year 2008). The H1-B cap will affect all NEW applicants for H1-B status, either as initial entry or as a change of status. It will also affect those foreign nationals who are in H1-B status seeking to work with new H employers, but who are currently exempt from the H cap based on employment with a research institution, or affiliated organization. (Foreign H1-B nationals  currently with a cap-subject employer have already been counted and are therefore not subject to the H-1B cap in order to extend a valid H1-B status or change H1-B employers).
The H1-B cap has been reached earlier and earlier each fiscal year. For Fiscal Year 2007 no new H filings were accepted after May 26, 2006. (The H1-B quota for U.S. Masters degreed employees has an additional 20,000 numbers, but still ran out last year in July 2006).
We are therefore recommending that all H1-B cases subject to cap be started and prepared as soon as possible for a filing soon after April 1, since the H1-B cap for fiscal year 2008 may be reached soon after the filing window opens. We strongly recommend that you consider all of your H1-B filing needs for October 2007 through September 2008 immediately.
Under the current laws, once the H cap is reached, you will not be able to obtain new Hs until April 2008 for October 1, 2008 start dates. This issue most clearly affects students working pursuant to Optional Practical Training (OPT) which may be valid into the 2008 fiscal year. For example, even though such individuals may have valid work authorization until February 2008 (as an example), we would recommend a change of status to H effective October 2007 (where appropriate) in order to provide continued work authorization once OPT expires. Note: All immigration cases are different, so please contact us to discuss any specific individual case.