08/25/2004 IMMIGRATION ALERT
**SPECIAL PRACTICE ADVISORY**

H-1B CAP: STRATEGIC PLANNING

 

The USCIS is reporting that they have received approximately 40,000 H-1B petitions which will be counted toward the 65,000 H-1b cap for fiscal year 2005 (which runs from October 1, 2004 to October 1, 2005). The 40,000 H-1b's includes 21,000 H-1b's that have been approved with October 1st start dates and 19,000 which are currently pending at the CIS. Of the total 65,000 H-1b's allotted for next fiscal year, 7,000 will be reserved for Singapore and Chile nationals.

Hammond Law Group encourages clients to take action now to prepare for the inevitability of the H-1b cap being reached in the fall.

*Employees with Optional Practical Training: companies are advised to review the current work authorization status of all foreign nationals to determine whether any employees have work authorization based upon Optional Practical Training as a foreign student. Optional Practical Training is employment authorization granted to foreign students for a maximum one year period, after which the foreign student must obtain an H-1b or comparable status to continue working. Companies should file for H-1b's now for any employees who are working based upon Optional Practical Training.

*Potential employees offshore: companies are advised to consider their offshore hiring needs for the next year and accelerate hiring plans. Most offshore foreign nationals are subject to the H-1b cap. Companies can either file the petition with a start date of up to 6 months or file for an immediate effective date and then postpone the visa issuance and entry of the foreign national into the U.S.

*Potential employees in non-H-1b status: companies who are currently interviewing candidates who are not in H-1b status and have not previously been in H-1b status should consider hiring now. After the petition is approved, a company has up to 60 days to begin employing the individual or to withdraw the job offer and petition.

Although the CIS is close to reaching the H-1b cap for the next fiscal year, there is not a necessity to convert currently pending cases to premium processing or file new H-1b cases under the premium processing method. To date, the CIS has always counted "pending H-1b cases" when announcing that the cap has been reached, thereby preventing later-filed premium processing cases to move ahead of regular filed H-1b cases. Of course, premium processing may be a good choice for "peace of mind".