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H-1B Visa Shortage – Strategic Planning to Obtain Work Authorization Beyond October 1, 2008

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H-1B Visa Shortage – Strategic Planning to Obtain Work Authorization Beyond October 1, 2008

January 14, 2008

We anticipate that this year, the government will once again receive at least twice as many H-1B application packages than the 65,000 annual cap allows. We provide this alert to assist you in identifying and preparing for H-1B challenges.

April 1, 2008 is the earliest date that the government will accept cases requesting an H-1B start date of October 1, 2008. The H-1B numerical quota was reached last year on April 2, after which the government held a "lottery" to determine which cases received on April 1 and April 2 would be allocated an H-1B number. Weaver, Schlenger & Mazel is now in the process of preparing all H-1B cases for filing on April 1, 2008. There are still only 65,000 H-1B visas to be allotted to individuals with Bachelor's degrees and foreign advanced degrees.

20,000 extra H-1B visas for U. S. Master's or Ph.D. degree holders also should be quickly reached. Last year, these additional visa numbers were also used up immediately. Weaver, Schlenger & Mazel advises preparing all U.S. advance degree H-1B cases for filing on April 1, 2008.

No Time Like The Present: Avoid H-1B Crisis Pitfalls

· Evaluate current employees. It is crucial to look ahead one + years to avoid potential "gaps" in employment authorization. Because, after this year, H-1B visas won't be available again until October 1, 2009, now is the time to identify foreign nationals currently engaged in Optional Practical Training or under other temporary work authorization that will expire before October 1, 2009, and who will require a change of status to H-1B. An example of this work authorization gap is students with F-1 practical training work authorization. This practical training authorization, which is normally issued for one year, typically expires in May or June. 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.

· Assess continued employment needs for employees under the following visa categories: (1) 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; (2) Those employees in TN (Trade NAFTA) status where the employer would rather not renew every year or seeks to move forward with permanent residency; and (3) 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. This is particularly true for employers who plan to hire recent or upcoming graduates. Work with counsel on the front end to evaluate a candidate's work authorization options, and contact Weaver, Schlenger & Mazel immediately when offers of employment are made to foreign nationals needing H-1B sponsorship.

· Work with counsel to identify alternatives to H-1B visas to maintain work authorization. Because there are no guarantees to winning the H-1B "lottery," it is critical to work with immigration counsel to identify other options for continued work authorization.

Achieve cost efficiency by contacting us in January. In order for us to meet the April 1 targeted filing deadline, our office will need to impose expedited legal fees for documentation received after Feb. 22, 2008.

Who is not affected by the H-1B numerical quota? Employers typically do 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 exempt from the H-1B annual numerical quota.

We hope that this information is helpful. Please contact us with questions.

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