Start Planning for H-1B Filings Now

The H-1B crisis for employers and foreign nationals is worse than ever. H-1B visas for new employment have been unavailable for many months, and although petitions can be filed on April 1 for employment starting October 1, 2007, those visas are expected to be gone within weeks or even days of April 1. Given the current supply and demand for H- 1B visas, it is absolutely critical for employers to start planning and preparing petitions now for new H- 1B workers.

What should employers do? Human resource personnel must remind managers that H-1B petitions can be filed again for new employment on April 1 and that visa numbers will be exhausted early. Employers also must determine now who among their current and prospective employees will require H-1B status for the first time, and thus be subject to the cap.

Employers also must determine who among their workers are affected by the cap. Those currently holding H-1B status are not affected by the cap. Nor are H-1B employees who are transferred from one company to another or those who seek extensions and amendments of H-1B status. In addition, H-1B petitions filed by institutions of higher education or related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations are, likewise, unaffected. And, new H- 1B1 visas for nationals of Chile and Singapore under a special program are not likely to be exhausted at any point during the fiscal year.

Employers should also consider that for some foreign nationals, TN, E-3, J- 1, L-1 and O-1 status may be alternatives to H-1B status.

While there is pending legislation in Congress that would increase the H-1B cap, it is unlikely that Congress will vote on it any time soon.

We invite inquiries from clients on how best to prepare for the upcoming window of opportunity.

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