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H-1B Visas Are Almost Exhausted - Time To Assess H-1B Needs!

Berin Romagnolo November 8, 2011

The H-1B visa is the most common work visa for “professional” foreign national employees, and the annual quota of permitted H-1B’s is almost exhausted.

What is an H-1B? 

Generally, H-1B’s are for employees who work in positions that require at least a Bachelor’s degree, and the foreign national has the relevant Bachelor‘s degree (or its equivalent).

The Quota Is Close

The US. Government issues 65,000 H-1B’s each fiscal year (which starts on October 1st), and an additional 20,000 H-1B’s for those who have obtained at least a Masters from a U.S. college or university.  The U.S. Citizenship & Immigration Service (USCIS) announced that it has already received 20,000 H-1B applications to fulfill the entire Masters quota.  And, the USCIS announced that, as of November 2nd, it has received almost 51,000 H-1B applications toward the total 65,000 H-1B’s allowed.

The Effect of the Quota 

Once the quota is reached, employers cannot obtain any new H-1B’s for employees until the start of the new fiscal year, which is almost one year away, on October 1, 2012.  The quota only affects an application to obtain an initial H-1B, not an application seeking to extend an existing H-1B status or transfer an existing H-1B status to another employer.  However, it will mean, generally, that all employees wishing to obtain their first H-1B or change from some other non-immigrant category to an H-1B (like changing from F-1 OPT, TN, EAD, O-1 or L-1 status to H-1B status) will not be able to get H-1B’s and possibly not any work authorization at all, meaning that they (and their families) will have to leave the U.S.  In addition to the two exceptions above (for extending and transferring existing H-1B status), the quota does not affect employees of institutions of higher education (or those affiliated with them) and of non-profit or governmental research organizations.

What to Do Now

Employers should assess the current immigration status of their employees to see who will need to switch into H-1B status by October 1, 2012. Typically, these are employees currently in F-1 OPT status, TN  status, or with EAD’s.  Employers should also assess their hiring needs six months forward.  H-1B applications can request an employment start date as far as six months away.  So, if employers can forecast that they will need personnel for a project or assignment in the next six months, they should consider hiring the employee with a future start date, and file the H-1B application now before the quota is reached and the option to hire them with an H-1B is gone.

For more information on this topic, please contact Berin S. Romagnolo.  

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2011 Posternak Blankstein & Lund LLP.  All rights reserved.

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