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, 2008 start date beginning April 1, 2008.

The 65,000 visa numbers are expected to be exhausted within the first day of April because demand is so high! We anticipate that the 65,000 visas will be exhausted on opening day. Petitioners cannot wait and must be ready to file on April 1st in order to have a chance at obtaining an H-1B visa number.

Last year Bill Gates 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 1, 2008 and reject those filed before the start date.

Because the filing date is approaching, and the quota is expected to be reached in the opening day of availability, H-1B petition preparation should start now. 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 by the first day 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, 2008 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, 2008. For example if you entered as a tourist and your I-94 card said your status was valid until October 1, 2008 or later, you would be able to remain in the U.S. You will not be allowed to work until October 1, 2008 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.