Legal Question in Immigration Law in California

H-1b Work Visa Cap

The H-1B Visa "cap season" can be difficult and stressful for employers seeking to employ H-1B workers and certainly for foreign nationals who need H-1B status to live and work legally in the United States. Cases should be prepared in advance and be transmitted for delivery on March 31, 2009 in order to reach the USCIS by April 1, 2009. It is possible that, due to the economy, the number of H-1B filings may be fewer than in recent years. However, one must be prepared for the H-1B cap to be met at the beginning of the filing date. Due to the high volume of cases filed on the very first day, a random lottery was held last year, consisting of cases filed on the first five days of filing.

The H-1B limit, or "cap," is the number of H-1B cases that can be approved each year as "new" H-1B filings. The annual limit on H-1B cap-subject approvals is 65,000, with a separate allocation of 20,000 cap exemptions for beneficiaries who hold U.S. masters' degrees or higher. (The 65,000 number is effectively reduced by 6800 due to numbers specifically reserved for H-1B1 filings for nationals of Chile and Singapore .) The cap primarily is a concern for persons seeking to enter the U.S. for the first time on an H-1B, foreign students who have employment offers following graduation and persons present in the U.S. in a status other than H-1B who have not previously held H-1B status.

Not all H-1B filings are subject to the cap. H-1B petitions filed by cap-exempt employers may be filed at any time during the fiscal year, depending only on the needs of the employer and the availability of the potential employee. USCIS uses the information in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, page 11) to determine if a petition is subject to the cap. If "yes" can be checked for any of questions 1-4, then the case should be cap exempt. The case also, generally, would be cap exempt if the response to question 5 is yes, unless the answer to question 6 is also yes. Cap exemption questions can be complex. Thus, it is necessary to have an experienced, knowledgeable immigration lawyer to analyze the situation.

Individuals who have previously held H-1B status generally would not be subject to the cap, even if they have held some interim status, such as F-1 or H-4. This would not be the case if their prior H-1B approval/s were cap exempt, however. The USCIS permits H-1B cases to be filed by more than one potential employer on behalf of a single foreign national. However, as explicated for the first time in new regulations codifying USCIS' long held policy, it is not permissible to have a single employer file multiple H-1B petitions for the same beneficiary in an effort to increase one's chances in the lottery.

Do not wait until it is too late. Contact Jacobson & Han LLP, Immigration Attorneys immediately at (213) 620-0222 or [email protected] in order to prepare and file on time.