H-1B petitions can be filed six months in advance of the requested start date. Employers seeking an October 1, 2008 start date can be filed no sooner than April 1, 2009. This is when the majority of H-1B cap subject petitions are filed, due to the limited number of H-1B visas available under federal immigration law each year.
Last year, the H-1B cap was reached on the very first day, so a visa lottery followed to determine which petitions would be selected for review and approval. Many petitioners and employees were surprised and disappointed to find out that their applications were not selected in the H-1B visa lottery, even though the foreign national was eligible for H-1B status, and the employer filed the petition on the first day possible.
Even individuals with US Master’s degrees found that the H-1B cap was reached on May 1, 2008, just a month after the cap was reached for standard Bachelor’s degree H-1B cap cases.
To give an H-1B case the best possible chance of being selected and approved, we highly recommend that employers and employees in need of work authorization contact us as soon as possible, so that (1) we can determine whether the employee is subject to the H-1B cap; and (2) if so, we can prepare an H-1B petition in time for the April 1, 2009 deadline and/or evaluate other visa opportunities or back-up options. Although it is possible that there will still be an opportunity to file and receive approvals for H-1B petitions after April 1, it is unlikely.
Either the employee or the employer, or both, can schedule a consultation with one of our immigration attorneys in Greensboro, NC or Wilmington, NC. We will look at the job description for the new hire, the desired start date for employment, salary requirements, the employee’s education and experience credentials, and other background information to determine whether the H-1B category is the most appropriate.
During our consultation, we will determine H-1B visa eligibility and/or other types of work authorization, explain legal and documentary requirements, and address H-4 or other visa/status options for the spouse and dependent children of the employee or potential hire. If we can proceed with preparing and filing the H-1B petition, we will keep both the employer and employee posted on current developments regarding the H-1B cap or other issues affecting the case. For those who require or choose consular processing, we can assist with obtaining H-1B and H-4 (dependent spouse or children) visas at a US Consulate or Embassy abroad if needed.
Not all cases must be filed on April 1. H-1B Petitions that are “cap exempt” may be filed at any time during the year. As a result, during our consultations our immigration attorneys will evaluate the petitioning school, organization, or company information to determine whether the April 1 deadline applies. Also, if the foreign national has been approved for H-1B status with certain employers before, the H-1B cap may not apply to that particular foreign national.
