Don’t Lose Your Opportunity to File an H-1B Visa
The clock is
ticking
and every day that important date in immigration -
April 1, 2008 comes closer. As many of you already
know, April 1 marks the first day that USCIS accepts
H-1B petitions for the federal government’s fiscal
year beginning on October 1.
Per regulations,
employers can file H-1B petitions no earlier than
six months in advance of the anticipated start date,
which makes April 1 beginning of the race for
obtaining an H-1B visa before the cap is reached.
The USCIS only makes
approximately 65,000 H-1B visas available each year,
i.e., the so-called "H-1B cap" or "H-1B quota".
Because the number of applicants each year is much
greater, however, the cap has been reached earlier
and earlier each year.
For the current fiscal
year (i.e., for employment which started on October
1, 2007), the H-1B cap was reached on the first day
the USCIS accepted petitions; namely, April 2, 2007.
For the next fiscal
year, employment starting from October 1, 2008: the
H-1B cap will likely also run out on the first day,
April 1, 2008, since there has been no increase in
H-1B visa numbers, and many people will be trying
again.
To Prepare for the
April 1, 2008 filing date, You Should Start Now
because it takes time to prepare an H-1B petition
for filing.
What
Happened in the Past?
Last year the cap was
reached in just one day and USCIS conducted a
lottery to randomly choose petitions for processing.
In first two days, USCIS received 123,480
cap-subject H-1B petitions, amounting to nearly a
double of the annual allotment of 65,000 visas.
The U. S. Master’s cap
that exempts the first 20,000 petitions on behalf of
beneficiaries who obtained an advanced degree at a
U. S. institution of higher learning was exhausted
on April 30.
This was merely a
continuation of the pattern that has been occurring
over the past several years, where each year the cap
was reached earlier than the year before. Based on
this historical perspective, it is virtually
guaranteed the same will occur this year and the cap
will be reached again on the first day of filing –
April 1, 2008.
Over the past few
years, the H-1B quota cap has been reached earlier
and earlier each year, as follows:
|
Fiscal
Year |
Earliest Employment Start Date |
Earliest H-1B Filing Date |
Date
H-1B Quota Cap Reached |
# of
Days H-1B Filing Window Open
(incl. Sat. Sun, and holidays) |
# of
Days less than prior fiscal year |
|
2005 |
October
1, 2004 |
April
1, 2004 |
October
1, 2004 |
183 |
|
|
2006 |
October
1, 2005 |
April
1, 2005 |
August
10, 2005 |
131 |
52 |
|
2007 |
October
1, 2006 |
April
1, 2006 |
May 26,
2006 |
55 |
76 |
|
2008 |
October
1, 2007 |
April
1, 2007 |
April
2, 2007 |
1
|
54
|
For the 2008 fiscal
year, which started on October 1, 2007, the H-1B
quota was reached on April 2, 2007, i. e.,
approximately six months before the fiscal year even
started, and almost two months earlier than it was
reached on the prior fiscal year.
As a result, the USCIS
was forced to undertake a lottery to select who
would actually receive an H1B visa.
For the 2007 fiscal
year, which started on October 1, 2006, the H-1B
quota was reached on May 26, 2006, i. e., over four
month before the fiscal year even started, and
almost three months earlier than it was reached on
the prior fiscal year.
For the 2006 fiscal
year, which started on October 1, 2005, the H-1B
quota was reached on August 10, 2005, i. e., over
one month before the fiscal year even started, and
almost two months earlier than it was reached on the
prior fiscal year.
For the 2005 fiscal
year, which started on October 1, 2004, the H-1B
quota was reached on October 1, 2004, i. e., on the
first day that the fiscal year started.
For the next fiscal
year, employment starting from October 1, 2008: the
H-1B cap will likely also run out on the first day,
April 1, 2008, since there has been no increase in
H-1B visa numbers, and many people will be trying
again.
H-1B
Application Timeline
Though it is not a
guarantee that your petition will be selected for
processing, if you follow this suggested timeline
you will have maximized your efforts to ensure
timely and successful filing of your H-1B petition.
|
ASAP: |
Identify
your H-1B needs, discuss the strategy
with your immigration attorney and
finalize the applicants list. |
|
Early
February: |
Obtain
Educational Evaluation if your
applicants have foreign degrees. |
|
Early
March: |
Prepare
all H-1B forms, support letter and other
required supporting documentation. |
|
Mid March: |
File LCA
with DOL |
|
March 31: |
Mail the
petition to USCIS for delivery on April
1, 2008. |
Conclusion
Prepare to File Your
2008 H1B Visa NOW
There has been no
increase in H-1B visa numbers for the next fiscal
year (i. e., for employment beginning from October
1, 2008). Further, many people who were unable to
obtain an H-1B visa for the current fiscal year are
waiting to file again. Therefore, there is a very
good chance that the H-1B cap will once again be
reached on the very first day.
To prepare for the
April 1, 2008 filing date, You Should Start Now
because it takes time to prepare an H-1B petition
for filing. In planning to file an H-1B, it is
important to understand that in order to properly
prepare an H-1B petition, a sufficient amount of
time must be allowed to gather the necessary
documents, and to address various legal issues which
may arise.
The competition for
the coveted H-1B visas has been intensifying over
the years and now the situation is in a dire state.
Filing early is no longer a guarantee of obtaining
an H-1B visa, it is now a prerequisite for even
being considered.
With this in mind, it
is important that every company interested in
sponsoring an H-1B worker plan ahead and prepare to
file the nonimmigrant visa petition in a timely
manner.
Tips
for Employers
·
Check to see if the individual you plan to hire is
subject to the cap.
When looking to hire
an individual who has already been in the H-1B
status, it is important to determine whether this
person has been previously counted towards the cap
or not.
For example, if you
are hiring someone who has worked for a university
and thus qualified for a cap-exemption, this person
would have to be counted towards the cap now because
they were not previously counted. This means that
the H-1B petition would need to be submitted by
April 1, 2008.
·
Obtain educational equivalency evaluations now.
For any person who
graduated from a non-U. S. institution of higher
learning, it is important to obtain a degree
equivalency evaluation that will be submitted with
the H-1B visa petition. Waiting until the last
minute could mean that you will not be able to
obtain the evaluation in a timely manner, because
the degree evaluation services tend to be inundated
with requests during this H-1B season.
·
File your Labor Condition Application and start your
public access file.
Before any employer
can file an H-1B visa, they must first file a labor
condition application with the U. S. Department of
Labor. Don’t forget that on or within 30 days before
the date of filing the LCA, the employer is
responsible for posting the LCA form or a notice of
the intent to obtain an H-1B at two conspicuous
locations in the place of employment for at least 10
days. All records related to the LCA filing should
be kept in a public access file.
·
Consider filing for more than one person for the
same position.
One way to address the
cap issue is to file an H-1B petition for more than
one qualified person and improve your company’s
chances of getting at least one approval. Based on
what happened last year, it is fairly certain that
USCIS will once again institute a lottery system to
randomly choose petitions for processing.
Last year about 1 in 2
petitions was chosen for processing, this year that
ratio will likely be even worse and could be as high
as 1 in 4. If you have identified more than one
suitable candidate, it may be worth your investment
to file for more persons than you had initially
planned. It is wise to at least take this option
into consideration when making your H-1B decisions.
