Prepare those H-1Bs Now

By Attorneys Robert L. Reeves and Joseph I. Elias

Once again, 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, 2009 start date beginning April 1, 2009.  Last year, due to excessive demand, the United States Citizenship and Immigration Services (USCIS) only accepted H-1B petitions for the first five business days of April.  We can expect the same for this year.  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 filing date is fast approaching, and once again, the quota is expected to be reached in the first week of availability.  H-1B petition preparation should be nearing 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.
Some frequently asked questions we have received about the H-1B cap follow.

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.  The USCIS will place all new cap-subject petitions received in a random lottery to be adjudicated for one of the H-1B visa numbers.

If I get an October 1, 2009 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 you maintain legal status until October 1, 2009.  For example if you entered as a tourist and your I-94 card said your status was valid until October 1, 2009 or later, you would be able to remain in the U.S.  You will not be allowed to work until October 1, 2009 and only if you are granted a Change of Status.

For students who are changing to H-1B status, the situation may be different.  In the past the 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, it becomes less likely that you will receive an H-1B visa. 

Those who require H-1B petitions must prepare 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.