Fiscal Year 2009 (FY2009) H-1B Cap Expected to be Met on April 1, 2008 (In Only One Day, Same as FY2008!).

• All 65,000 H-1B visa numbers for Fiscal Year 2009 (FY2009) are expected to be used up on April 1, 2008, the very first day you can file for them!
• Steps you can take to increase your likelihood of receiving an H-1B visa number this year.
• What Peng & Weber can do to help you petition for an H-1B visa number this year.

All 65,000 H-1B visa numbers for Fiscal Year 2009 (FY2009) are expected to be used up on April 1, 2008, the very first day you can file for them!

Based on FY2008 visa numbers having run out on the very first day in April 2007, Peng & Weber expects that the FY2009 H-1B cap will also be exhausted on April 1, 2008, the very first day they will become available. The only possible reason we can think of that would change this prediction is a legislative fix in early 2008, but the possibility of new legislation increasing H-1B quota does not look very promising at all.

Our prediction is based on what happened with H-1B visa usage for FY2008, when the H-1B visa quota for bachelor’s degree holders was met on April 2, 2007, the very first day petitioners could file for that year’s H-1B visa numbers. The USCIS announced on April 3, 2007 that it had received approximately 150,000 cap-subject petitions as of April 2, 2007. USCIS then had to conduct a random lottery drawing process to determine which of these 150,000 (USCIS later revised this number down to about 118,000) would receive one of the 65,000 H-1B visa numbers. In the end, petitions filed on the very first day had only about a 50:50 chance of winning the H-1B visa lottery.

The separate H-1B visa exemption quota of 20,000 for U.S. advanced-degree holders lasted until April 30, 2007, only about one month after they first became available. Based on what happened with these advanced-degree exemption numbers for H-1B visas in FY2008, we believe that these 20,000 U.S. advanced-degree H-1B quota exemptions will also be gone very rapidly, well before the end of April 2008.

Although a review of past years (FY2004-FY2008) shows a rapid depletion of the H-1B quota every year, FY2008 (i.e., last fiscal year) was the first year that the 65,000 H-1B visa quota was met on the very first day of filing. Likewise, FY2008 was the shortest period (29 days) in which the 20,000 U.S. advanced-degree H-1B quota exemptions were exhausted.

Unfortunately, those who did not receive an H-1B approval last fiscal year (i.e., FY2008) will only add pressure to the competition to obtain an H-1B approval under this year’s quota. The result is that FY2009 H-1B visa numbers will disappear even faster than they did for FY 2008 (unless Congress changes the law, which currently does not appear likely).

Steps you can take to increase your likelihood of receiving an H-1B visa number this year.

For the reasons discussed above, we believe that the 1B visa numbers will be used up again on April 1, 2008, the first day of its filing. If you hope to obtain an H-1B visa this year, it is critical to start early. Waiting until April 1 to get started will be too late. (Your petition must be mailed on March 31, 2008 to arrive at USCIS on April 1, 2008, but you have to begin preparing the paperwork in advance.)

Also, if you miss the Fiscal Year 2009 H-1B quota, the next time non-exempt H-1B visas will not become available again (absent Congress changing the law) until April 1, 2009 for a start date of October 1, 2009. That means you (or your employee) will not be able to work until October 1, 2009 unless you (or your employee) are eligible for some other type of work visa.

Steps you can take to help ensure you can obtain an H-1B visa number this year include:

• Plan Ahead: Whether you are a potential H-1B employer or a potential H-1B employee, make a decision about whether you want to go forward with a particular employer or employee as soon as possible. If you do not make a decision until later on—especially if you wait until late March—you and your attorney may not have time to prepare and file your H-1B petition on time.
   
• Hire an Attorney Early: If you are going to hire an attorney to assist you with your H-1B petition, you should do so ASAP. If you hire an attorney early, the attorney can help you to get your case ready for filing early before March 31, 2008 so that your case can be received by the USCIS on April 1, 2008. If you would like Peng & Weber to assist you, you should contact us ASAP.

What Peng & Weber can do to help you petition for an H-1B visa number this year.

Here are the steps for Peng & Weber can take to assist you with your H-1B petition filing for FY2009:

1. If you a U.S. employer, please email us the resume of your candidate employee, along with a brief job description for a free evaluation for your employee or potential employee, so we can provide an initial assessment whether your candidate is eligible for H-1B classification. (Likewise, if you are an employee seeking your first H-1B petition, please email us your resume for a free evaluation, along with your employer’s basic company information and job description.) We will review your documentation to see if we can assist you. It is our law firm policy, however, that we do not accept a case unless we believe that you are eligible for H-1B classification. Please be advised that the initial free evaluation does not cover in-person consultation or extended telephone consultation. (You can read elsewhere on our website about our free evaluation and paid consultation services.)

2. After our initial free evaluation, we will inform you of the attorney fees and costs for our law firm to assist you with filing your H-1B petition.

3. If you are interested in retaining our legal services, we will email you a retainer agreement for signature.

4. Upon receiving your signed retainer agreement and the retainer check, we will begin to process your H-1B petition. (We cannot start on your case until we receive the signed retainer agreement and retainer check.)

5. We will prepare your H-1B petition in advance (i.e., before March 31, 2008), so it can be submitted by overnight express mail to arrive on April 1, 2008, the first day you are allowed to file. (The H-1B petition will have a starting employment date of October 1, 2008.)

If you have additional questions about the H-1B cap, please see our H-1B Caps FAQs Page. Likewise, if you have questions about alternatives to H-1B or what your options are if you do not receive an H-1B petition for FY2009, please see either our Work Visas Page. If you would like Peng & Weber to assist you, you should contact us ASAP.