H-1B Petitions and the 2008-2009 Cap

Thursday, February 21, 2008
Contributed by: Charles A. Mallard

For professionals seeking to explore immigration options to the United States and for employers needing professional workers, the H-1B category is one of the only visa options available. The H-1B category is designed to provide a vehicle for employers to obtain authorization to hire foreign professionals, holding university degrees, to work in "specialty occupations." While there are exceptions/exemptions (such as change of employer, higher education institutions, some non-profit and master's degree employees), the numerical limitation (know as "the cap") for H-1Bs for the fiscal year 2009 is 65,000.

Knowing that the fiscal year is different than the calendar year (October 1, 2008 - September 30, 2009) and knowing when to file are key to being able to participate. Regarding the latter, it is that time of year again. CIS will begin accepting H-1B petitions for fiscal year 2009 on April 1, 2008. CIS will not, however, accept standard H-1B filings before such time. And now for the hook, based on last year's experiences, the H-1B cap for standard H-1B and U.S. Masters Degree petitions will likely be met on the first day of filing and CIS will likely adopt a "random lottery" process to allocate the H-1B cap numbers. So, if you are thinking about having H-1B some time between now and basically 2010, you better start your planning.

While Underwood can not guarantee that an H-1B petition filed on April 1, 2008 will be accepted by CIS, we can most assuredly guarantee that should you not file on April 1, 2008 that your petition will have little, more likely no, chance of being accepted. Accordingly, we can't stress enough that should you desire to explore H-1B options that you do so now, and should you intend to file an H-1B petition that you get your information assembled and to us by the first week in March 2008.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.