January 30, 2009

H-1B Cap-Subject Filing Period Fast Approaching

The H-1B cap-subject filing period for Fiscal Year 2010 will commence April 1, 2009. We strongly encourage employers to start preparing their petitions as soon as possible to maximize their ability to secure one of the limited number of H-1B visas available for this fiscal year that starts on October 1, 2009. Despite the down-turn in the economy, it is expected that the U.S. Citizenship & Immigration Services (USCIS) will continue to receive record number petitions, as it has since 2004.

There are only 65,000 H-1B visas allotted annually for cap-subject beneficiaries, and 20,000 H-1B visas for beneficiaries advanced degrees earned in the United States, including Master’s and Ph.D. degrees. The USCIS timelines permit cap-subject H-1B filings to be submitted no earlier than April 1, 2009 with a requested employment start date of October 1, 2009. Last year, the USCIS received approximate 163,000 petitions during the initial five-day filing period, and among these, conducted a random selection process to select 65,000 petitions for the H-1B cap plus 20,000 petitions for the advanced degree cap that would be eligible for processing.

In December 2008, the Department of Labor (DOL) announced that due to heightened fraud in H-1B filings it would start closely scrutinizing the Labor Condition Applications (LCA), which must be certified by the DOL before H-1B petitions can be filed. The DOL announced that it would introduce new procedures in 2009 and that LCAs will take longer to certify, up to seven days to adjudicate a fairly straight-forward application or more than seven days for one requiring further investigation of proper wage determinations. This will undoubtedly create more delays in the overall H-1B process, which can cost an employer the opportunity to participate in the H-1B cap-subject filing period this fiscal year.

As a result of these factors, employers are urged to prepare all H-1B cap-subject petitions well in advance. We encourage you to look ahead and assess the continued employment needs of your foreign national staff, including new hires and those employees currently working on practical training as students (F-1) or as exchange visitors (J-1).

Please note that employers generally will not need to obtain new H-1B visas for lateral H-1B hires. Further, institutions of higher education, nonprofit research organizations, and government research organizations continue to be H-1B cap exempt.