As of April 1, 2008, employers can file H-1B 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, 2008 or later (Fiscal Year 2009). The H-1B cap will affect all NEW applicants for H-1B status, either as initial entry or as a change of status. It will also affect filings by cap-subject employers for those foreign nationals who are currently in H-1B cap exempt status based on employment with a research institution or affiliated organization. (Foreign H-1B 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 H-1B status or change H-1B employers).

This past year (fiscal year 2008) the general H cap was exceeded on the first day of filing and USCIS devised an internal lottery system for allocating H-1B numbers. (The H-1B quota for U.S. Master's degreed employees has an additional 20,000 numbers, but numbers still ran out last year in late May).

We are therefore recommending that all H-1B cases subject to cap be started and prepared as soon as possible for a filing on April 1, since the H-1B cap for fiscal year 2009 should be exceeded on the first day. We strongly recommend that you consider all of your H-1B filing needs for October 2008 through September 2009 immediately.

Under the current laws, once the H cap is reached, you will not be able to obtain new H-1Bs until April 2009 for October 1, 2009 start dates. This issue clearly affects students working pursuant to Optional Practical Training (OPT) which may be valid into the 2009 fiscal year. For example, even though such individuals may have valid work authorization until February 2009, we would recommend a change of status to H effective October 2008 (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.

Please contact us as soon as possible to review plans for any potential new hires you may be considering.