By Attorneys Robert L. Reeves and Joseph I. Elias
The immigration community is bracing itself for a historical and unprecedented exhaustion of the H-1B cap. Employers can petition H-1B workers for the October 1, 2007 start date beginning April 1, 2007. Since April 1st is a Sunday this year, applications will not be accepted until April 2, 2007.
The 65,000 visa numbers are expected to be exhausted within the first two weeks of April because demand is so high! This will have been the fastest the cap has ever been exhausted. Petitioners cannot wait and must be ready to file on April 2nd in order to have a chance of obtaining an H-1B visa number.
Bill Gates recently testified at Congressional hearings urging the cap be eliminated entirely and that an infinite number of H-1Bs be available. Sen. Judd Gregg (R-N.H.) said he “agreed 100 percent” that there shouldn’t be a limit on the number of highly skilled people in the country, but he suggested Congress might not be able to do more than double the quota.
Until Congress acts to increase the quota, employers and H-1B workers will have to scramble for the visa numbers as soon as they become available. The USCIS has informed the public that it will not accept any applications received earlier that April 2, 2007 and reject those filed before the start date. This means people who planned on filing their petitions on Friday, March 30, 2007 with the USCIS to accept on Saturday March 31, 2007, will have their cases rejected.
Because the filing date is fast approaching, and the quota is expected to be reached in either the first or second week of availability, H-1B petition preparation should be in its final stages. Those people looking for petitioners should intensify their job search right now to ensure sufficient time for an H-1B petition to be prepared for filing within the first week of April.
Below are some frequently asked questions we have received about the H-1B cap.
What does it mean when the H-1B cap is reached?
This means that if an employer is petitioning to change your status to H-1B (for example from student or tourist status to H-1B), and the petition is received after the cap is met, the change of status cannot be granted.
If I get an October 1, 2007 start date will I be able to remain in the U.S. legally?
You will only be able to remain in the U.S. if the previous status you were admitted in was valid until October 1, 2007. For example if you entered as a tourist and your I-94 card said your status was valid until October 1, 2007 or later, you would be able to remain in the U.S. You will not be allowed to work until October 1, 2007 and only if you were granted a Change of Status as well.
For students who are changing status to H-1B, the situation may be different. In the past the legacy INS passed a regulation allowing students who just graduated to remain in the U.S. and start working on October 1. It is unknown if the USCIS will provide the same benefit this time.
I am in H-1B status now and I have filed an extension or I will be filing an extension. Will I be in danger of missing the cap? Will I go out of status?
No. The H-1B cap only applies to new H-1B petitions. If an employee is already in H-1B status and is being petitioned by the same employer or even a new employer, that employee is not subject to the cap.
I am not in H-1B status now. There is an employer who is willing to sponsor me. What should I do with the cap end approaching?
You should begin processing the H-1B petition as soon as possible. The longer you delay, the closer you are to not getting a visa number.
Those who require H-1B petitions must coordinate with their immigration lawyers right now to ensure that they are on track for an early filing. In all likelihood, there will be no opportunity for a late filing.