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April 1, 2007 - Filing Period Opens for New H-1B Workers

April 1 opens the period for employers to apply for H-1B status for new qualified workers for the 2008 federal government fiscal year (October 1, 2007 to September 30, 2008). The April 1 filing date is significant because of the early exhaustion of the H-1B annual fiscal year quota in prior years.

Under current law, the number of H-1B visas available for each federal fiscal year (October 1-September 30) is capped at 65,000. The first 20,000 applicants who qualify for H-1B status with master’s degrees or higher from U.S. educational institutions are exempt from the 65,000 quota. 

Proposals to increase the H-1B quota and the exemptions have been included in the comprehensive immigration law changes under consideration by Congress. However, until Congress concludes that debate and any resulting legislation is made law, employers must deal with the existing H-1B quotas.

As a result of the cap, employers should file in early April 2007 for H-1B visa status to begin in October 2007 for new employees. However, there is no way to predict when the quota will be exhausted for this year. The 65,000 quota for the fiscal year beginning October 1, 2006 was exhausted in May 2006. The last batch of 20,000 H-1B visas reserved for workers with master’s degrees or higher from U.S. colleges was exhausted in July 2007. Employers interested in obtaining H-1B status for workers beginning in October 1, 2007 must act promptly to file their petitions.

What is H-1B?
The H-1B status is a temporary visa classification for individuals to serve in “specialty occupations”. Generally, a specialty occupation is one which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation which requires the attainment of a bachelor’s or higher degree as a minimum requirement to perform the job duties. The H-1B status is particularly useful for employers seeking to hire foreign workers as accountants, engineers, actuaries, computer specialists, certain health professionals and scientists. H-1B status is initially valid for up to three years with a maximum duration of six years. This maximum period may be further extended in the event the employment-based permanent residence process has been timely initiated for the foreign worker.

The H-1B quota cap does not apply 

• to current H-1B workers petitioning to extend the authorized H-1B status in the United States, 
• to petitions to change the terms of employment for current H-1B workers, 
• to allow current H-1B workers to change H-1B employers or 
• to concurrently work in a second H-1B position. 

Also, the cap does not apply to 

• H-1B petitions at institutions of higher education or related or affiliated non-profit entities 
• non-profit research organizations or government research associations.

2007 College Graduates
In order to secure quota visas before they are exhausted, employers should consider petitioning for H-1B status for qualified workers as soon as possible. This is particularly important for employers who may employ foreign college students after graduation in May 2007. Often the foreign students receive optional practical training (OPT), which permits the students to work in the United States for 12 months after graduation. OPT is an excellent opportunity for employers to evaluate students, i.e., a twelve-month interview. However, for the 2007 graduates, it is likely that the 2008 quota of H-1B visas for which the students may qualify will be exhausted by May 2008 when OPT expires. Employers who wish to continue to employ foreign students must promptly consider applying for H-1B status for the students. It is prudent to act quickly to identify those foreign individuals for which an employer may wish to seek H-1B status.

The attorneys of Bose McKinney & Evans are prepared to work with you in obtaining H-1B status for qualified individuals and assisting with other immigration issues that you may encounter when employing foreign individuals. If you have any questions about H-1B status or immigration issues in general, please contact Phil Ripani at (317) 684-5280 or pripani@boselaw.com.