Immigration regulations permit the filing of an H-1B petition as early as six months before the intended start date of the employment. Therefore, it will be possible to file H-1B petitions seeking an October 1, 2008 start date for “new” petitions on April 1.

Filing ON April 1 is strongly recommended to secure an H-1B visa number from the “regular” (non U.S. Masters Degree) quota of only 65,000 numbers for the coming fiscal year beginning October 1. Last year more than 100,000 petitions were filed on April 1st and 2nd and a random lottery was held to select cases. Many were unable to secure a number despite filing on those dates.Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department.

This is particularly relevant in those situations where an individual is currently employed in F-1 Practical training status, J-1 status, or on the basis of any other form of employment authorization of limited duration and who wishes to secure H-1B status using next years’ numbers before the “cap” is reached again.

There is an additional, separate, allotment of 20,000 H-1B numbers available to applicants who possess at least a Masters Degree earned in the U.S. Last year, those numbers remained available for just a few weeks after April 1. They are expected to be used up more quickly this year as well.

Once the new numbers are gone, it will no longer be possible to obtain “new” H-1B status prior to October 1, 2009 unless one of the following exceptions apply.

•  Extensions of H-1B status for aliens currently employed by the petitioner.
   

• “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition will require a number under the cap and will not be approvable when the numbers run out!].
   

• “New” employees for a private employer who would normally be subject to the “cap” but who will be employed “at” (on the physical premises) of an exempt employer as described below.
   

• “New” employees currently employed in H-1B status with an exempt employer as described below who will continue in that exempt employment and who are seeking concurrent, part-time employment with an otherwise cap-subject employer.
   

• Petitions on behalf of citizens of Chile and Singapore (those numbers remain current even now for the current fiscal year!)

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

• institutions of higher education
   

• a nonprofit organization related to or affiliated with an institution of higher education. Caution: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education. However, the term affiliate is broadly defined to include a non-profit employer who has a “cooperative relationship” with an institution of higher education.
   

• a nonprofit research organization or governmental research organization

Alternatives to the H-1B

The anticipated shortage of H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

•  TN visa status for citizens of Canada or Mexico
   

• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year
   

• E-3 visa status for citizens of Australia
   

• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)
   

• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant
   

• O-1 visa status for aliens of extraordinary ability 
   

Further details about these options may be found on our web site at www.rcosta.com.

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

•  An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”
   

• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver
   

• An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.
   

Please feel free to contact us if you have any questions.