H-1B Visa Status Alert:

Plan Ahead for FY 2010 H-1B Needs

On April 1, 2009, Citizenship and Immigration Services (CIS, formerly INS) will begin accepting H-1B temporary worker petitions for the 2010 Fiscal Year. If approved, H-1B status would become effective October 1, 2009.

On the first date of eligible filing for the past two years, CIS has received more than twice the annual number of applications made available for H-1B workers and implemented a lottery system to randomly select cases for processing. The same result is anticipated next year.

The H-1B annual quota applies to foreign nationals who do not presently hold H-1B status, including recent graduates who are working during their one year of "Optional Practical Training." For H-1B workers who already have been counted against the annual H-1B quota, this cap does not apply to filings on their behalf, such as requests for extensions of stay or changes in employer sponsor. Certain types of employers are also exempt from the H-1B annual quota, including institutions of higher education and related or affiliated non-profit entities (such as hospitals), and non-profit research organizations or government research organizations.

The H-1B visa category is the most common classification available to foreign professionals working in the United States. The employer is obligated to pay the H-1B worker a minimum prevailing wage for the offered position and the category is only available for professional level employment which typically requires a minimum of baccalaureate level education. This classification is widely utilized by U.S. companies on behalf of foreign engineers, IT professionals, physicians, professors, managers and other professionals and is often the only available option for temporary employment in the U.S.

Currently there are only 65,000 new H-1B visas available each fiscal year. It is possible we may see a short-term increase in the quota in the future as President-elect Obama has said he supports a temporary increase in the number of H-1B visas available as part of comprehensive immigration reform, but this remains to be seen.

Please contact Jenifer Brown or another member of the immigration group to discuss H-1B eligibility and requirements or consideration of potential alternatives to the H-1B visa category for key foreign workers.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.