H-1B Visa Filing Deadline April 1, 2009
New H-1B visa petitions for fiscal year 2010, which begins on October 1, 2009, will be accepted for filing starting on April 1, 2009. This means employers should have their H-1B visa petitions ready to be sent to the U.S. Citizenship and Immigration Services (USCIS) no later than March 31, 2009.
Because of the continued limited number of H-1B visa petition approvals that are statutorily available for the upcoming fiscal year, employers need to act quickly to have their new H-1B visa petitions processed by the USCIS and counted against the H-1B visa cap. Despite the recent downturn in the economy, it is still expected that the USCIS will receive more new H-1B visa petitions than can be granted under the cap. It is recommended that employers act now and have their H-1B visa petitions prepared, finalized and ready to be sent to the USCIS by March 31, 2009, for receipt on the first day submissions are accepted: April 1, 2009. Pursuant to the recent stimulus bill, employers that have received certain Troubled Assets Relief Program (TARP) funds and other taxpayer funds could be deemed H-1B dependent and are or may be subject to additional requirements. It is particularly important that such employers begin to work on new H-1B visa petitions right away.
H-1B Visas
H-1B visas are the most sought-after temporary work visa available for foreign nationals wanting to work in the United States. In general, to qualify for an H-1B visa: (i) the foreign national must have a U.S. bachelor’s degree, or hold at least the equivalent, in a specific profession; (ii) the job position in the United States must require someone with such educational background; (iii) the proposed salary must at least equal the prevailing wage rate of similarly employed individuals; and (iv) there must be an H-1B visa available under the cap.
H-1B Cap
As with last year, there are a total of 65,000 new H-1B visas available for the upcoming fiscal year, of which 6,800 are set aside for citizens of Chile and Singapore under free trade agreements. In addition, there are 20,000 new H-1B visas available for foreign nationals who have at least a master’s degree or higher from a U.S. institution.
Last year, the USCIS received in excess of 150,000 new H-1B visa petitions, and it is expected that this year the USCIS will again receive more new H-1B visa petitions than can be granted under the cap. As a result, the USCIS will assign each new H-1B visa petition a number and then randomly select petitions to be processed. Only those petitions selected will be adjudicated; the remaining petitions will be returned to the sponsoring employers.
New H-1B visa petitions can be filed six months prior to the requested date of validity. Because the U.S. Department of State’s fiscal year begins on October 1 of every year, the first day of filing for new H-1B visas is April 1 of each year. Based on past experience, the number of new H-1B visas available will be more than overwhelmed by petitions filed on April 1, 2009.
Accordingly, April 1 should be considered as the effective filing deadline. To give employers the best chance of having their new H-1B visa petitions filed within the deadline, selected for processing, and counted against the cap, H-1B visa petitions should be prepared as soon as possible and submitted to the USCIS no later than March 31, 2009.
Who is Exempt?
The H-1B visa cap only applies to new H-1B visas. Foreign nationals who currently have and have maintained H-1B visa status and want to either request an extension of their current H-1B visa status or amend their current H-1B visa status to change employers are not subject to the H-1B visa cap. Additionally, certain institutions of higher education, nonprofit organizations, entities associated with an institution of higher education, nonprofit research organizations and governmental research organizations are generally not subject to the H-1B visa cap, although any foreign national wanting to change employers from a cap-exempt employer to an employer subject to the cap is subject to the upcoming H-1B visa cap.