H-1B Visas for FY 2008

By Attorneys Robert L. Reeves and Elsie H. Arias

Employers seeking to employ a foreign national on an H-1B visa for fiscal year (FY) 2008 should begin preparation at this time so as to be able to file visa petitions with the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2007. The cap for FY 2007 closed on May 26, 2006, well before the fiscal year began on October 1, 2006. Due to the limited availability of initial H-1B visas, many large corporations are already preparing thousands of petitions for immediate filing in April. Accordingly, we advise all employers to file H-1B visa petitions for prospective employees on April 1, 2007, or immediately thereafter as the cap is anticipated to close early again.

As noted in previous articles in this column, Congress authorizes the USCIS to issue a maximum of 65,000 new H-1B visas per fiscal year with some exceptions. The first 20,000 H-1B visas issued to alien workers with U.S. master’s degree or higher are exempt from the 65,000 cap; H-1B visas issued to such individuals subsequent to the first 20,000 are then counted against the overall 65,000 cap. Some U.S. Senators have proposed increasing the cap, but such legislation has not yet been passed by Congress. Foreign nationals in the U.S. in lawful H-1B status who are seeking to extend their visa or change employers are not affected by the annual limit.

Employers should also be aware that if their prospective employee is currently in the U.S. and wants to change status to H-1B, that foreign national must be in a lawful nonimmigrant status through October 1, 2007, the start of FY 2008, so that change of status can be granted. If the foreign national’s current nonimmigrant status will expire prior to October 1, 2007, the foreign national must either extend their status, which may be difficult, or return to their home country and consular process their H-1B visa.

H-1B visas are only issued to foreign nationals employed in a “specialty occupation” or as a fashion model of distinguished merit and ability. The regulations define “specialty occupation” as an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty as a minimum qualification for entry into the United States. Examples of H-1B occupations include teachers, physical therapists, accountants, computer programmers, and engineers. H-1B workers must receive wages and benefits comparable to their U.S. counterparts so as to not adversely affect wages and labor conditions for U.S. workers.

H-1B workers are subject to a limitation of six years; upon completing six years’ employment in H-1B status, they must depart the U.S. for one year before commencing new H-1B employment. As we have discussed in prior columns, the American Competitiveness in the 21st Century Act of 2000 (“AC21”) permits H-1B workers to extend their employment beyond six years if certain requirements are met. A new memorandum released by the USCIS also clarified that any time spent as an H-4 dependent will not count towards the six-year limitation in H-1B status. This memo also provided that a foreign national who was in the U.S. in valid H-1B status for less than the six-year maximum period of admission, but has since been outside the U.S. for more than one year can elect to either: (1) be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted, or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

Employers seeking to employ a foreign national on an H-1B visa for FY 2008 should begin assessing their professional labor needs and prepare visa petitions for submission on April 1, 2007, the date that filings for initial H-1B visas will be accepted by the USCIS. As obtaining H-1B visas has become increasingly complex and timeliness of filings is critical, employers seeking to petition foreign workers on H-1B visas should consult a knowledgeable and experienced immigration attorney.