On April 1, 2009, the U.S. Citizenship and Immigration Services
("USCIS") will begin accepting new H-1B petitions for
employment commencing on October 1, 2009. For most employers, new
H-1B petitions are subject to an annual limit of 65,000 new H-1B
visas. An additional 20,000 visas are available each year to
foreign workers with an advanced degree from a U.S. academic
institution. The annual quota only applies to new H-1B visas, not
to individuals who already hold H-1B status. Foreign nationals who
work at universities and non-profit research organization are also
excluded from the numerical cap.
Last year, the H-1B cap was reached immediately and we
anticipate that, despite the economic downturn, USCIS will once
again reach the cap when the new filing period opens on April 1. If
USCIS receives more petitions than there are available numbers, it
will hold a lottery to determine which cases may proceed to be
adjudicated. Employers should evaluate their H-1B visa needs now so
that any petitions will be ready for filing on April 1.
An additional consideration is that the new stimulus package,
the American Recovery and Reinvestment Act of 2009, makes it more
difficult for companies receiving funds from the Troubled Asset
Relief Program (TARP) to hire foreign workers under the H-1B visa
program. Such companies must now comply with specific recruitment
provisions, which in the past were only imposed upon H-1B dependent
Finally, in evaluating their needs, employers should consider
filing an initial H-1B for current employees or potential new
candidates working on another type of work visa, such as students
(F-1/OPT), exchange visitors (J-1), intra-company transferees
(L-1), NAFTA professionals (TN), Australian Free-trade
professionals (E-3), or Treaty Investor/Traders (E-1/E-2).
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his analysis of current trends and future projections for the various immigrant preference categories with AILA.
On June 15, we reported that the State Department computer system used for verifying the personal data of visa applicants and for printing visa stamps was crippled by a "glitch" causing worldwide delays.
In a recent Administrative Appeal Office (AAO) decision, Matter of Simeio Solutions, LLC, the court held that a change in the beneficiary's place of employment to a different MSA is a material change with respect to the immigration regulations, and, thus, requires that the sponsoring petitioner file an amended or new H-1B petition with a corresponding Labor Certification Application (LCA) for the new location.