In NCAA basketball, there is “March Madness”. For immigration lawyers, there is “H-1B March Madness.” The primary purpose of this update is to remind employers that the time to file new H-1B Petitions on behalf of foreign workers is April 1, 2009. Although petitions cannot be filed earlier than April 1, 2009, employers who intend to file H-1B petitions for the upcoming 2010 fiscal year – – which starts October 1, 2009 – – should start planning for the onslaught now.

The H-1B category is the most popular visa option used to employ qualified foreign skilled workers. Any position requiring at least Bachelor level credentials can serve as the basis for a “specialty occupation” H-1B Petition. Employment can be for an initial period of up to three years with an additional three year extension in most cases. The H-1B category has a statutory cap of about 65,000 new H-1B visas per year plus an additional 20,000 slots for designated workers with advanced degrees from U.S. universities.

The yearly demand for H-1B visas far exceeds the supply. Last year, employers filed more than 163,000 petitions for those select 85,000 slots. As a result, U.S. Citizenship and Immigration Services (“USCIS”) has had to set up a lottery system to determine eligibility. Employers who file Petitions even a few days after April 1, 2009 may not be eligible to participate in the H-1B lottery.

H-1B CAP EXEMPTIONS

There are certain exemptions to the H-1B cap:

a) certain organizations are exempt from the cap and may continue to obtain H-1B status for their employees, i.e. institutions of higher education and non-profit organizations or entities related to or affiliated with an institution of higher education and non-profit research organizations or a governmental research organization. (Unfortunately, these categories do not exempt all non-profit and research organizations); b) individuals who have been granted status under H-1B in the previous six years and have not left the United States for more than a year after obtaining such status; and c) in limited circumstances, foreign physicians who are currently in J-1 (Exchange Visitor) status and who have received a national interest waiver of the two year foreign residency return home requirement.

OTHER NONIMMIGRANT VISA OPTIONS

There are other options to the H1-B category for eligible workers. A non-exclusive list includes:

a) TN status for citizens of Canada or Mexico, who are eligible for a select list of occupations in accordance with the North American Free Trade Agreement; b) L-1 status for employees who have worked abroad for an affiliated employer for at least one year within the previous three years; c) O-1 visa status for aliens with extraordinary ability; d) H-2B status for workers in positions that are inherently temporary – e.g., seasonal or peak load positions; e) J-1 status available from certain employers, or through third-party sponsors; and f) the new E-3 special occupation visa status for citizens of Australia.

In addition, an Employment Authorization Document (EAD Card) allows for unrestricted employment in the U.S. Those who are eligible to apply for an EAD Card include F-1 students who are recent graduates of a U.S. university or college and are undergoing practical training, or individuals who are in the final stages of applying for a green card based on the relationship to a U.S. citizen spouse.