H-1B petitions by “private” (non-exempt) employers seeking an October 1, 2008 start date may be filed beginning April 1, 2008. We are referring to April first as a “deadline” since last year, more than 100,000 petitions were filed and logged in on the first two days. Since only 65,000 numbers were available, a random lottery selection process was conducted by the Immigration service. Many petitioners were disappointed to learn that their cases, although properly filed, were not selected for adjudication.

An additional 20,000 numbers is available for applicants who possess a Masters Degree (or higher) from a U.S. university. Last year those numbers remained available for a few weeks before the supply ran out. We are operating on the assumption that those numbers will also be gone quickly-possibly on the first day or two as well.

Consequently, it is imperative that private employers contemplating the filing of an H-1B petition seeking an October 1, 2008 start date move quickly. Time is running short to properly prepare a case for filing.

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