Immigration Alert: Consider April 1 The "Deadline" To File New H1 B Work Visa Petitions

While April 1 is the first day to submit a petition, our experience indicates that this will be the only day petitions will be accepted due to the high demand for H1-B visas. Thus, all documents must be ready and filed at United States Citizenship and Immigration Services ("USCIS") by that date. We have assisted employers in past years to prepare their documentation and ensure that their petitions are submitted on the first day, before caps are reached.

Upon each new fiscal year, the USCIS has 65,000 slots for initial H-1B petitions and 20,000 for those who obtained a Masters' degree or higher from a U.S. college or university. Last year, the USCIS received over 150,000 cap-subject H-1B petitions on the first day of filing. (The USCIS reached the cap for advanced degree H-1B petitions three weeks later.)

Because the number of applicants far exceeded the number of available slots, USCIS conducted its first (but probably not the last) H-1B lottery. Last year, Allen Matkins attorneys anticipated the effect of an onslaught of H-1B petitions and assisted our clients to file on the first day so they were not shut out.

Employers who need to file initial H-1B petitions for an employment start date of October 1, 2008 (the first day of the USCIS fiscal year 2009) should have their petitions ready and filed by April 1. If your prospective or current employees need H-1B work authorization this year, Allen Matkins attorneys can assist so that the petition will be filed on April 1.

Employees who are subject to the H-1B cap include those on F-1 student status with optional practical training (OPT) work authorization expiring in the next year. For those employees, H-1B petitions must be filed on April 1 to avoid a break in work authorization. Furthermore, Canadian and Mexican employees in TN status also should be considered for change of status to H-1B in order to take advantage of the longer work authorization (three years instead of one year) and dual intent should they want to petition for permanent residency (which is not available under TN status).