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Now is the time to try to finalize your recruiting plans for those who may need H-1B status for the first time. H-1B status is the most common means for a company employing professional workers to hire a foreign national, but our immigration system only allows for 65,000 new H-1B workers per fiscal year, which commences October 1st. This limit is known as the "H-1B cap." Two years ago the cap was reached on the very first day of the fiscal year, October 1, 2004, and last year the cap was met in early August 2005, more than a month before the fiscal year even started!
Last year Congress added an additional quota of 20,000 H-1B visas for persons with a U.S. Master’s or higher degree. We "ran out" of these visas in January, 2006. We expect these 20,000 visas to be depleted even more quickly this coming year.
Many employers were (and still are today) left without any means to hire valuable foreign national workers in a timely fashion, and are frustrated that Congress has not added more H-1B numbers. In his recent State of the Union address, President Bush called for an increase in H-1B numbers since key U.S. jobs are going unfilled, yet it remains to be seen if Congress will pass legislation to this effect.
Strategic alternatives are available in many circumstances, but they may not be available in every case.
As we alerted you last September, on April 1st, 2006 United States Citizenship and Immigration Services (USCIS) will begin accepting filings for October 1, 2006 H-1B start dates (six months in advance of the start date.) As the economy continues to improve, we predict that the cap will be met even earlier this year, so we urge you to prepare now to be ready to file as close to April 1st as possible for any known H-1Bs your company may need.
In your planning it is important to remember that there are significant exceptions to the H-1B cap. Not every H-1B applicant is subject to the cap. If an applicant was granted H-1B status in the past six years and has not left the U.S. for more than a year after obtaining such status, and if the applicant has already been counted against a prior cap in the past six years, then this worker is not subject to the cap. The applicant would likely not have been counted against a prior cap if he/she was sponsored by either an institution of higher education; a non-profit organization or entity related to or affiliated with an institution of higher education; or a non-profit research organization or governmental research organization. Likewise, an applicant is not subject to the cap if the new employer now sponsoring the H-1B is an institution of higher education, a non-profit organization or entity related to or affiliated with an institution of higher education, or a non-profit research organization or governmental research organization. And nationals of Chile and Singapore have part of the 65,000 total H-1Bs reserved specially for them under treaties between the U.S. and those countries, and can continue to seek H-1B status until the reserved allotment runs out.
Therefore, you should first consider those foreign national employees who are here in another status, such as F-1 and J-1 students who will soon be without work authorization and will have to return home if they do not obtain H-1B status. Also examine workers in different employment statuses, such as TN or L-1B who may need H status to pursue a green card, extend their stay, or avoid difficulty renewing their TN visa status. In addition, you should also inquire about the visa needs of any candidates in your pipeline to see if they would qualify for an exception.
Recruiters should understand the timing of the H-1B cap and the importance of filing for the next batch of H-1Bs on April 1st or soon thereafter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.