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A New H-1B Visa Season is Upon Us

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A New H-1B Visa Season is Upon Us

January 20, 2010

It is time to gear up for the fiscal year H-1B season again. As you may know, the H-1B numbers for last year's quota ran out in December. Although we can never predict what will happen this year, we have spoken to many of our corporate clients, most of whom, unlike last year, intend to hire additional employees over the next several months. Our very unscientific conclusion is that the demand for H-1B visas may be higher this year. The safest strategy to assure that your company can hire the H-1B workers it needs is to assess your hiring needs as early as possible, and to file any required H-1B petition as close to April 1 as able.

April 1, 2010 is the earliest date that the government will accept cases requesting an H-1B start date of October 1, 2010. Weaver, Schlenger & Mazel is now in the process of preparing all H-1B cases for filing on April 1, 2010. 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. As before, there are 20,000 additional visa numbers for foreign nationals who hold U.S. Master's or Ph.D degrees. Last year, these numbers were also exhausted by December. Weaver, Schlenger & Mazel advises preparing all U.S. advance degree H-1B cases for filing on April 1, 2010, if possible.

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, 2011, now is the time to identify foreign nationals currently engaged in Optional Practical Training or under other temporary work authorization that will expire, and who will require a change of status to H-1B this year or early next year. An example of this work authorization gap is students with F-1 practical training work authorization. This practical training authorization is normally issued for one year. 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 seeks to move forward with permanent residency (which is considered inconsistent with TN status); 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, or for whom, due to a recent change in interpretation by the government, the employee may no longer be considered sufficiently "specialized" or "managerial" for L extension purposes.

Evaluate current recruitment and upcoming hiring needs. Alert recruiters and 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 Weaver, Schlenger & Mazel on the front end to evaluate a candidate's work authorization options, and contact us 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.

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 (or H-1B "transfers"). 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 any questions you may have.

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