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American Bar Association - Defending Liberty, Pursuing Justice

March 2008

Vol. 4, No. 2

Litigation

 

Are You Prepared to File Your H-1BS for Receipt by USCIS on April 1, 2008?

Employers will be able to file cap-subject H-1B petitions for receipt on April 1, 2008, requesting an effective start date of October 1, 2008. It is anticipated that if efforts in Congress to increase the cap fail or do not materialize, then any delay in filing beyond April 1, 2008, could result in the potential loss of the H-1B, and consequently, the employee’s ability to work. The cap has been a major issue in that it has been reached in eight out of the last 11 years. Since the number of H-1Bs available was reduced (in Fiscal Year 2004) from 195,000 down to 65,000, in each succeeding year employers have had to deal with a significantly reduced filing time frame. In 2006, the H-1B cap opened on April 1 and was exhausted on June 28th. This represented only a 58-day filing period. In 2007, the H-1B cap was exhausted on the first day of acceptance of submission, April 2, 2007.

Regarding the H-1B in general, U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

Employers must plan accordingly to work within the cap. With the significant number of filings expected due to the strong economy for 2008, and the experience during the past two years when the cap was reached earlier each time, we urge employers to identify and contact immigration counsel, with potential employees’ credentials, as soon as possible so that their paperwork can be prepared and ready to file on or as close to April 1, 2008, as possible. We encourage employers to identify candidates early so that counsel can assess whether they are qualified for the H-1B as early as possible in 2008. Please remember that candidates must have a bachelors’ degree or the equivalent at the time of filing. A candidate who does not have the qualifications on the date of filing will not qualify for receipt on April 1, 2008, even if they expect to have them shortly thereafter. This is a significant problem for students for whom an offer will be made but who will not graduate until May or June 2008. In this scenario, we once again encourage you to contact immigration counsel as soon as possible so that they can provide support to your human resources department in assisting in the decision whether employees can realistically assume they can be employed in H status, whether and when to file an H, setting realistic start dates, and planning a “gap” strategy if necessary.

Please also note that in addition to the H-1B cap for employees with a bachelors’ degree or the equivalent, there are an additional 20,000 cap numbers set aside for candidates with U.S. Master’s or Ph.D. degrees. These additional 20,000 numbers allowed for filing for U.S. Master’s and Ph.D. holders through the end of April, and provide an additional 30 days or so in which to file for H-1B status. This year the U.S. Master’s/Ph.D. degrees cap is expected to be reached even earlier, however.

Remember that individuals who already hold H-1B status and were previously subject to the H-1B cap are “cap exempt” and, although they must still file an H for the new employer, may file an H to transfer from one employer to another at any time and do not need to await the April 2008 filing date.

Neil S. Dornbaum and Kathleen M. Peregoy are members of Dornbaum & Peregoy LLC Newark, New Jersey. Their practice is limited to immigration and naturalization with special emphasis on employment-based immigration.

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