H-1B Visas For FY 2008

The cap for FY 2007 was reached on May 26, 2006, well before the fiscal year began on October 1, 2006. Because the H-1B Visas are limited, a lot of employers are already preparing thousands of petitions for immediate filing in April. Accordingly, we advise all employers to file H-1B visa petitions for prospective employees on April 1, 2007, or immediately thereafter as the cap is anticipated to close early again.

The maximum allotted visas authorized by Congress are 65,000 new H-1B visas per fiscal year with some exceptions. The first 20,000 H-1B visas issued to alien workers who obtained their master's degree here in the U.S. are exempt from the 65,000 cap; H-1B visas issued to such individuals subsequent to the first 20,000 are then counted against the overall 65,000 cap. Some U.S. Senators have proposed increasing the cap, but such legislation is yet to be passed by Congress. Foreign nationals in the U.S. in lawful H-1B status who are seeking to extend their visa or change employers are not affected by the annual limit.

Employers should also consider that the foreign national who they intend to employ must be in lawful non-immigrant status which must be valid until October 1, 2007 which is the affectivity date of that approved H-1B Visa. Should the foreign national not meet this requirement, for example a person in B-2 or Tourist visa may elect to have his/her B-2 tourist visa extended so that they may bridge the gap between the time their authorized stay (I-94) expires until October 1, 2007. If extending the B-2 tourist visa is not an option, the foreign national may then leave the U.S. and return to their home country before their authorized stay (I-94) visa expires and obtain their H-1B visa at the U.S. Embassy in their home country.

H-1B visas are only issued to foreign nationals employed in a "specialty occupation" or as a fashion model of distinguished merit and ability. The U.S. Immigration regulations states that a "specialty occupation" is an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's degree or higher in the specific specialty as a minimum qualification for entry into the United States. Examples of H-1B occupations include accountants, engineers, computer programmers, teachers, marketing analyst, etc. As part of the Labor Condition Attestation all H-1B workers must be paid the wages and benefits equal or greater than U.S. workers in the same type of profession or field so that it will not adversely affect the wages and labor conditions for U.S. Citizen workers.

H-1B workers are subject to a limitation of six years; upon completing six years' employment in H-1B status, they must depart the U.S. for one year before commencing new H-1B employment but there is a provision under the U.S. Immigration Law called the American Competitiveness in the 21st Century Act of 2000 ("AC21" ) which allows H-1B workers to extend their employment beyond six years if certain requirements are met. A new memorandum released by the USCIS also clarified that any time spent as an H-4 dependent will not count towards the six-year limitation in H-1B status. This memo also provided that a foreign national who was in the U.S. in valid H-1B status for less than the six-year maximum period of admission, but has since been outside the U.S. for more than one year can elect to either: (1) be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted, or (2) seek to be admitted as a "new" H-1B alien subject to the H-1B cap.

Employers who intend to employ a foreign national on an H-1B visa for FY 2008 must begin the process now so that they may timely file the H-1B visa petitions on April 1, 2007, the date that filings for initial H-1B visas are accepted by the US Immigration Service. Since the H-1B visas has become more and more complex and filings timely is crucial, U.S. employers who intends to employ foreign workers on H-1B visas are advised to consult a knowledgeable and experienced Immigration Lawyer.