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Time to Assess H-1B Work Visa Needs Now

Berin Romagnolo March 2, 2011

In about one month, on April 1, 2011, employers can file H-1B petitions for their employees again.  So, it is time to survey potential new hires and current employees in other immigration categories (ex: F-1 OPT's, TN's, and L-1's) to identify who will need H-1B visa's, and start preparing those H-1B applications now.  

Brief Background of the H-1B Quota:The US Citizenship and Immigration Service (USCIS) generally only issues 65,000 H-1B visas per year, plus an additional 20,000 H-1B's for those with at least a Masters Degree from a U.S. institution.  Current H-1B employees who need to extend their H-1B stays and H-1B employees who will be transferring employers are not counted toward the cap.  Other employees are exempt from the cap as well, such as those working for non-profit institutions and institutions of higher education.  

Timing of H-1B Applications:Employers can file cap-subject H-1B petitions on April 1st every year.  In years past, three times as many applications as permitted H-1B's were filed on April 1st, giving employers only a 33% chance of getting an H-1B for their employees.  With the downturn of the economy, however, the quota has been taking much longer to reach.  This year, the quota was reached on January 26, 2011.  So, now that the cap is reached, employers have to wait until April 1st to apply for H-1B's for their employees, and the earliest start date that they can request is October 1st. 

Current Situation:There are no new H-1B's available.  So, if employers want to switch a current employee into H-1B status or hire a foreign national requiring an initial H-1B, they should discuss with their immigration attorney creative solutions to obtain proper work authorization.  Otherwise, employers will have to wait to file for these new H-1B's on April 1st, and will only be able to ask for a work start date of October 1st or later.  The economy has been picking-up; so, to be safe, employers should assess their H-1B needs now and apply on April 1st for identified needs.

For questions about information in this client alert, or any immigration-related questions, please contact Berin S. Romagnolo.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2011 Posternak Blankstein & Lund LLP.  All rights reserved.

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