H-1B Cap-Subject Petitions Must Reach USCIS on April 1

A limited number of H-1B visas are available each year. Under the regular H-1B cap, 65,000 of these visas are currently available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher.

Cap-subject H-1B visas become available each year on October 1—and filings with USCIS can be made no sooner than 6 months in advance. April 1 is the first day filings will be accepted.

Filings will be subject to a lottery

If last year is any indication, the allotment of regular and master's cap cases will be exhausted on the first day of filing. Filed cases will then be subject to a computer-generated random lottery by USCIS.

As it did last year, USCIS will likely implement premium processing after the random lottery is conducted. If a case is not chosen, USCIS will return the petition along with all applicable filing fees, including the $1000 premium processing filing fee.

Cap exceptions include petitions for employment change, extension petitions

It is important to note, that not all H-1B cases are subject to the cap. People, and not petitions, are to be counted under the H-1B cap. The basic rule is, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Cases subject to the H-1B cap include:

• Petitions for new H-1B employment and foreign national is outside of the U.S.
• Petitions for new H-1B employment requesting a change of status from F-1 to H-1B
• Petitions to change H-1B employment from a cap-exempt entity (such as a university) to a cap-subject entity (such as a private employer)

Cases NOT subject to the H-1B cap include:

• Petitions to change employers for a foreign national already in H-1B status with a cap-subject entity
• Petitions to extend or amend H-1B status
• Petitions for H-1B concurrent employment
• Petitions filed by institutions of higher education and non-profit organizations that are related to institutions of higher education
• Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement
• Petitions for Chilean, Singaporean and Australian citizens pursuant to special H-1B1 and E-3 procedures

Consider options for bridging work-authorization gap

If a case is not selected under this year's random lottery, companies and foreign nationals will need to look at alternatives to bridge the gap in work authorization until October 2009.

Such alternatives may include obtaining work authorization in another visa category or continuing in F-1 student status and obtaining curricular practical training. If the company is a multinational corporation with offices and subsidiaries located outside of the United States, a transfer overseas may be possible.

Although the idea of extending F-1 optional practical training to 29 or 21 months—from the current 12-month eligibility period—has been raised with USCIS, no changes have been announced. It is unclear whether such relief will be implemented to help F-1 students not selected in the H-1B lottery this year.

USCIS has recently published information about this year's H-1B cap filings. USCIS has also announced that guidance regarding duplicate filings and other relevant information for filing cases will be issued prior to April 1.