Immigration Alert: The H-1B 'Cap Season' Is Upon Us

We are sending this alert to advise clients to plan now for the

April 1, 2009 "deadline" for the filing of H-1B

worker petitions. As you may already know, Congress has placed a

numerical "cap," or limit, on H-1B visas of

58,200 each fiscal year, with an additional 20,000 reserved for

applicants holding U.S. master's degrees or higher. Last

year, U.S. Citizenship and Immigration Services (USCIS) received

163,000 H-1B visa petitions in the first five days of April, far

exceeding the numerical cap, thus causing USCIS to conduct an H-1B

"lottery" and to choose the 78,200 winners. Thus

all H-1B visas are gone for this current fiscal year ending

September 30, 2009, and employers may file for FY 2010 H-1B visas

commencing April 1, 2009 (for validity beginning on October 1,

2009). Those not selected for this year's H-1B lottery will

"miss the cap" and not be eligible for an H-1B

for FY 2010. In each of the last several years, the cap has been

exhausted in the first few days of April and, despite the current

down economy, we predict the FY 2010 H1-B quota to be exhausted

soon after the April 1, 2009 opening day for filing H-1B

petitions.

At Mintz Levin, we understand that many of our clients may not

have a clear idea how many of their potential employees will

require H-1B petitions in the coming months, and that the current

economic environment makes planning this far in advance

challenging. However, given the large volume of applicants we

anticipate for this year's batch of available H-1B visas,

we urge you to consider these issues as you move forward in your

hiring cycle, and to identify as soon as possible those candidates

already in your employment who will require H-1B petitions, so that

we can begin preparing the necessary documentation in advance of

the April 1, 2009 filing date.

Specifically, employees or potential employees who may qualify

for H-1B status include:

individuals on F-1 optional practical training and J-1 academic

training (including those who may have been hired but

haven't begun working yet);

employees in TN status approaching their third (or higher) year

of TN status, or considering applying for green cards;

employees in L-1B status who may be approaching their fourth or

fifth year of L-1B status;

spouses of H-1B employees already in H-1B status who are

considering changing their status to enter the workforce; and

individuals currently employed with an affiliate overseas, or

individuals you may be recruiting from overseas to...