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Time to Evaluate H-1B Visa Needs for 2006/2007

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Time to Evaluate H-1B Visa Needs for 2006/2007

January 16, 2007

As we advised last year, we recommend that we file H-1B cases on April 1, 2007 or very soon thereafter in order to maximize ability to secure one of the limited H-1B visas available for the 2008 fiscal year starting October 1, 2007. There are still only 65,000 H-1B visas allotted annually. On April 1, the government will accept cases requesting a start date of October 1, 2007, or six months in advance of the new fiscal year. Because the H-1B visa cap for this fiscal year was reached by the end of May 2006, we anticipate a high demand for numbers this spring.
20,000 Extra H-1B Visas for U. S. Master's or Ph.D. Degree Holders Should Also Be Quickly Reached. These additional visa numbers were used up by mid summer 2006. Plan to file before June graduations if feasible.

Avoid H-1B Crisis Pitfalls:

Evaluate Existing Current Employees. It is crucial to look ahead one+ years to avoid "gaps" in employment authorization. Identify those foreign nationals currently engaged in optional practical training or under other temporary work authorization that expires before the 2009 fiscal year starting October 1, 2008 and who will require a change of status to H-1B. Otherwise, you may be required to take a currently authorized foreign national employee off payroll when the employee's work authorization ends if an H-1B visa is required and one is not available. An example of this work authorization gap is F-1 practical training work authorization, which may expire in May or June of each year. As a result, it may be necessary to apply now for an H-1B visa many months in advance of the expiration of the F-1 practical training work authorization. This potential pitfall nonimmigrant visa category and others are described below.

Assess Continued Employment Needs for Employees under the Following Visa Categories: (A) Those employees currently working on practical training as students (F-1) or as exchange visitors (J-1) where the employer anticipates a need to continue the employment of this individual beyond the period of practical training or other work authorization; (B) Those employees on TN (Trade NAFTA) visas where the employer may seek to move forward with permanent residency; and (C) Those employees on L visas reaching their period of maximum stay where a change of status to H-1B could provide a more extended period of time to continue with their work for the employer on a temporary basis.

Evaluate Current Recruitment and Upcoming Hiring Needs. Alert hiring managers to make hiring decisions well before April 1 as practicable for foreign nationals not already in H-1B status and in need of an H-1B visa before October 1, 2008. Work with counsel to maximize work authorization options. It would also be helpful to contact us immediately with offers to foreign nationals needing H-1B sponsorship who hold U.S. advance degrees.

Avoid additional fees by contacting us in January. Timing is key in the H-1B visa shortage crisis. In order for us to meet the April 1 targeted filing deadline, our office will need to impose a $500 expedite legal fee for documentation received after Feb. 15 and before March 1; a $750 expedite legal fee for documentation received after March 1 and before March 15; or a $1000 expedite legal fee if documentation is received after March 15, for April 1 filings.

Who is Not Affected by the H-1B Cap. Note that employers normally will not need to obtain new H-1B visas for lateral H-1B hires. Further, institutions of higher education, nonprofit research organizations, and government research organizations continue to be H-1B cap exempt.

We hope that this information is helpful. We would advise contacting us soon to ensure cost effective immigration planning.

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