• Should Employers Rush to File H-1B Cases on April 1?
  • February 11, 2010
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • On March 31, 2010, U.S. employers may begin to file H-1B (specialty occupational professional) work visa petitions so that U.S. Citizenship and Immigration Services ("CIS") receives them on April 1, 2010, the first day of the H-1B filing window for the next federal year. H-1B petitions filed for FY2011, if approved, would be effective October 1, 2010. The H-1B visa category, which includes a total of 85,000 "slots" per government fiscal year, reached its limit for FY2010 on December 21, 2009.

    While the cap for FY2010 was not met on the first day or week as it had been in recent years, this is still a critical time for employers to consider filing H-1B cases for FY2011 for two reasons. First, just because the FY2010 cap was not met until December 2009, there is no way to definitively say that the FY2011 limit will not be reached on the first day as it had been in years prior. Do we think it is likely the cap will be met on April 1? Probably not, but if you have critical new hires or existing employees, our recommendation is to file on April 1, 2010.

    Second, we believe that FY2011 is a great opportunity for employers to change the status of those employees who have time limited work authorizations or are in a status that does not allow for the filing of permanent resident applications. With current Employment-based Third Preference (green card) backlogs, employees could wait for 7-10 years at least before reaching the end of the green card process. This lengthy wait far exceeds the time allowable to remain in the U.S. under many visa categories. For example, L-1 employees are limited to either 5 or 7 years work authorization. Without having their status changed to another visa category, there is a high likelihood that L-1 employees will max out of L-1 visa time before they obtain a green card.

    In contrast, while H-1B specialty workers are generally limited to 6 years work authorization, there is an exception that allows employees in H-1B status to extend their temporary work status beyond the 6th year in limited circumstances. By changing the status of L-1 foreign nationals to H-1B, an employer is opening the door to extensions beyond the 6th year -- a benefit that has become critical in many circumstances. In times of extensive delays and backlogs to muddle through the permanent residence process, this ability to maintain work authorization is invaluable to many employers and employees.

    So, should employers rush to file H-1B cases on April 1? Yes, first to ensure important employees are able to obtain work authorization and second, to take advantage of an opportunity that may not come along again for years.