• On April 1, 2009, USCIS Will Begin Accepting H-1B Petitions for New Employment Starting October 1, 2009
  • March 19, 2009 | Authors: David Z. Izakowitz; Jacquelyn E. Stone
  • Law Firms: McGuireWoods LLP - Charlottesville Office ; McGuireWoods LLP - Richmond Office
  • The U.S. Citizenship & Immigration Services (USCIS) of the Department of Homeland Security will begin accepting on April 1, 2009, petitions for new employment in H-1B status for the 2010 federal fiscal year which begins on October 1, 2009. The USCIS will accept petitions for processing until it determines that it has reached the maximum allowed under the H-1B cap quotas.

    Currently, the number of H-1Bs that can be issued for new employment in a federal fiscal year is capped at 58,200 plus any of the 6,800 H-1B visas set aside for Chilean and Singaporean citizens that were not used during the prior fiscal year. In addition, there is a second quota of 20,000 H-1B visas for foreign nationals with U.S.-earned Master’s or higher degrees. Last year, both quotas were reached on the very first day that the USCIS accepted petitions. However, given the downturn in the U.S. economy and rising unemployment, this year it may take longer before the quotas are reached.

    Under current law, if the USCIS receives a sufficient number of petitions to reach either numerical limit on April 1, 2009 or on any of the four subsequent business days, a random selection “lottery” will be conducted. The USCIS will issue an announcement if and when a lottery is needed.

    There are various categories of H-1B petitions that are not subject to a cap and employers can file these petitions at any time of the year. These categories include petitions to:

    • Request new employment by a "cap-exempt" employer, an institution of higher education or related or affiliated nonprofit entity or a nonprofit research organization or government research organization;
       
    • Extend the time a current H-1B worker may remain in the United States;
       
    • Change the terms of employment for current H-1B workers;
       
    • Allow current H-1B workers to change employers (unless the change is from a cap-exempt to a cap-subject employer); and
       
    • Allow current H-1B workers to work concurrently under a new H-1B petition.

    A foreign national who has been counted against a cap within the previous six years will not be subject to it again. However, workers who obtained H-1B status by a petition filed by a cap-exempt employer have never been counted and so to change employment to a subject employer, they would need to be selected for an H-1B visa in the 2010 federal fiscal year.

    A few important points and some tips for H-1B filings:

    • A foreign student in F-1 status who is working for an employer under optional practical training may remain in the United States and continue to work in that status until October 1, 2009 if: 1- the H-1B petition filed on his or her behalf is accepted for processing by USCIS; and 2- the employer has requested a change from F-1 to H 1B status effective October 1, 2009.
       
    • Filing an H-1B petition with a request to premium process (expedited processing within 15 calendar days by payment of a $1,000 fee) will not increase the likelihood of selection in a lottery. However, those who file and pay for premium processing may be issued a receipt notice faster than those filing under regular processing, and, therefore, will know sooner if their petition has been chosen in a lottery. The USCIS will act on the petition within 15 days of selection.
       
    • The USCIS asks for separate checks made payable to the “Department of Homeland Security” for each applicable fee: $320 base filing fee; ACWIA fee of $750 for employers with 1-25 full-time equivalent employees and $1,500 for employers with 26 or more full-time equivalent employees unless exempt; $500 anti-fraud fee (not applicable to Chile or Singapore H 1B1 cases); and $1,000 premium processing fee.
       
    • All H-1B petitions should be sent to either the California or Vermont Service Center of the USCIS depending on the place of intended employment for the H-1B worker. All cap-exempt petitions should be submitted to the California Service Center.
       
    • The USCIS will not accept duplicative or multiple filings for the same individual. The petitions will be denied or revoked and the filing fees will not be refunded. This prohibition does not extend, however, to related employers filing petitions for the same foreign worker as long as the positions are different and based on separate, legitimate business needs.