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New Window for Filing H-1B Visa Petitions Fast Approaching

Immigration Law Alert Grant Sovern, Eric D. Ledbetter, Lisa D. Duran, Otto W. Immel

The new H-1B filing period is fast approaching for employers who intend to sponsor a first-time H-1B worker during the next federal fiscal year (i.e., October 1, 2012 to September 30, 2013). The U.S. Citizenship & Immigration Services ("USCIS") will begin accepting new H-1B petitions on April 1, 2012. Employers are encouraged to apply by this date in order to lock in their H-1B visas for the upcoming year. This is of particular concern for workers who are currently on an F-1 student visa using OPT work authorization as well as potential new hires who have never held H-1B status.

USCIS grants 65,000 new H-1B visas per federal fiscal year to employers who hire for positions that require at least a bachelor's degree in a specialty field. Because the demand for temporary work visas typically exceeds supply, USCIS often runs out of them months before the fiscal year ends. For example, despite the uncertain economy, employers used up all 65,000 visas within the first seven weeks of the current fiscal year. The competition is expected to be at least as intense in the next fiscal year.

Moreover, USCIS could conceivably receive more H-1B petitions than available slots, triggering a random selection process to determine which petitions to accept for processing. In order to obtain a new H-1B visa for an employee who has not held one during the previous six years, employers are strongly encouraged to file their petitions on April 1, 2012, or risk being unable to employ the candidate in the coming year. We recommend that employers canvass their workforce and potential recruitment pool immediately to determine who is most likely to need an H-1B status in the upcoming federal fiscal year.

An additional 20,000 new H-1B visas are available for employees with master's degrees from U.S. universities or colleges. Although this places advanced degree H-1B professionals in a slightly advantageous position, employers are still strongly encouraged to apply as close to April 1, 2012, as possible in order to secure an H-1B visa slot while they are available.

The upcoming filing period does not apply to employees who already have an H-1B visa either with their current employer or with a previous employer during the last six years. It also does not apply to "cap-exempt" H-1B employers, such as institutions of higher education, nonprofit organizations affiliated with higher education institutes and nonprofit research organizations. However, please note that recent CIS decisions on nonprofits affiliated with universities suggest organizations that have been exempt from the cap in the past will need to re-evaluate their eligibility this year. Physicians with Conrad 30 J-1 waivers are also exempt from the H-1B cap regardless of the nature of their employer. Cap-exempt employers and physicians with waivers may obtain H-1B status at any time during the year without regard to the annual H-1B cap. If you are not certain whether a first-time H-1B visa is needed, you should contact an immigration attorney immediately.

For those who are unfamiliar with the H-1B program, USCIS grants H-1B status in three-year increments for up to six years to qualifying foreign workers. The H-1B employee is authorized to work only for the employer that filed the petition. Assignments to off-site work locations and third-party clients are generally not allowed unless the H-1B employer maintains a traditional employment relationship by supervising and controlling the work of the employee. Employers must offer a salary that meets the prevailing wage for the position in the specific geographic area and satisfy certain mandatory notice requirements. Quarles & Brady's attorneys can assist in determining whether the H-1B visa will help you meet your business goals.

For additional information, please call your Quarles & Brady attorney or contact one of the following attorneys who can assist with immigration issues: Grant Sovern at (608) 283-2668 / [email protected], Eric Ledbetter at (312) 715-5018 / [email protected], Lisa Duran at (602) 229-5225 / [email protected] or Otto Immel at (239) 659-5041 / [email protected].

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