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H-1B Quota Strategies- Obtaining Work AuthorizationBeyond October 1

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H-1B Quota Strategies- Obtaining Work AuthorizationBeyond October 1

January 23, 2009

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 quota allows and that there will be no congressional relief to increase the annual cap.

April 1, 2009 is the earliest date that the government will accept H-1B cases. We anticipate that all cases received on April 1 and April 2 will be subject to a lottery. Weaver, Schlenger & Mazel is now in the process of preparing all H-1B cases for filing on April 1, 2009. 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. We anticipate that the Service will also hold a lottery in early April for cases received on April 1 and 2, 2009.

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. H-1B visas won't be available again until October 1, 2010. We have been working with many of our clients to identify foreign nationals currently engaged in Optional Practical Training or under other temporary work authorization that will expire before October 1, 2010, and who will require a change of status to H-1B like those students with F-1 practical training work authorization. This practical training authorization, normally issued for one year, typically expires in May or June. It therefore 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.

o Important Change to Note - New Regulations allow for "cap-gap" relief. New regulations published last April allow for beneficiaries of timely filed H-1B petitions selected in the H-1B lottery, whose petitions are timely filed and which request October 1 start dates, to extend their OPT work authorization through until October 1 without any "gap." Also, OPT extensions may be available to certain employees if their employers participate in the government's E-Verify program.

Assess continued employment needs for employees under the following visa categories: (1) 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 current work authorization; (2) Those employees on L visas reaching maximum period of 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 is no guarantee of winning the H-1B "lottery," it is critical to work with immigration counsel to identify whether there are any 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 quota 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 look forward to working with you. Please contact us with questions.

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