FY 2009 H-1B Petitions Can Be Filed On April 1, 2008

Reminder: FY 2009 H-1B Petitions Can Be Filed On April 1, 2008

Clients Are Advised To Plan Ahead and Gather Necessary Supporting Documentation
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EXECUTIVE SUMMARY

Employers hoping to hire new employees in H-1B status for the 2009 fiscal year (FY 2009) that starts on October 1, 2008 are reminded that U.S. Citizenship and Immigration Services (USCIS) will start accepting such petitions on April 1, 2008. Given that last year, USCIS received so many petitions on the first day of the filing season that the agency utilized a lottery to determine which petitions would be processed, it is critical that all H-1B petitions for cap-subject foreign workers be submitted no later than April 1. Employers are therefore urged to plan ahead, gather the necessary supporting documentation, and consult with their immigration counsel as soon as possible about any FY 2009 H-1B filings.

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As of April 1, 2008, U.S. Citizenship and Immigration Services (USCIS) will begin to accept advance filings of H-1B cases for employment in Fiscal Year (FY) 2009, including cases falling under the 20,000 H-1B cap exemption for foreign nationals holding advanced degrees from U.S. universities. Both standard and advanced degree H-1B cases with employment start dates in FY 2009, which begins on October 1, 2008, may be filed up to six months before the date that the prospective employee is to begin work. For example, where employment is to begin on October 1, 2008, an H-1B petition may be filed as early as April 1, 2008.

Standard H-1B cases filed beginning on April 1 will count against the overall FY 2009 H-1B cap of 65,000. However, the standard H-1B cap is reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers will be available in the standard H-1B pool for FY 2009, though some unused FTA visas from FY 2008 may be recaptured and later made available for FY 2009 employment. Advanced-degree cases will count against the 20,000 additional H-1B numbers made available pursuant to the provisions of the H-1B Visa Reform Act.

Rapid Cap Exhaustion Expected

The last several fiscal years have seen exhaustion of H-1B numbers at an increasingly fast pace.

•    In FY 2006, standard H-1B numbers were reached in just over four months, by August 10, 2005. Advanced degree numbers for FY 2006 were exhausted in approximately eight months.

•    In FY 2007, the standard H-1B cap was reached on May 26, 2006 – just eight weeks after the opening filing date of the fiscal year; advanced degree numbers were exhausted by July 26, 2006.

•    In FY 2008, USCIS received considerably more than 65,000 cap-subject H-1B petitions on April 2, 2007 (which was the first day petitions could be filed, since April 1 was a Sunday) and used a lottery to select which petitions would be processed. Advanced degree numbers were also used up rapidly and were exhausted by April 30, 2007.

Employers should begin their employment planning as soon as possible so that H-1B petitions for cap-subject employees can be prepared well in advance of April 1 and can be submitted to USCIS for receipt on that date.  Relevant documentation should be gathered and prepared as soon as practicable, including certified Labor Condition Applications (LCAs), copies of college or university degrees or transcripts, evaluations of foreign educational credentials, and certified translations of any foreign language documents. Note that prospective H-1B workers must already have been granted at least a U.S. Bachelor’s degree or equivalent at the time of filing.

However, even with timely filing on April 1 there is no guarantee that H-1B petitions filed with USCIS on April 1 will be processed if, like this past year, the agency receives more than enough petitions on that day to satisfy the annual H-1B cap.