Companies wishing to file H-1B petitions for workers who have not held H-1B status should plan ahead to ensure their petitions are ready for submission on April 1, 2009 – the first day that H-1B petitions will be accepted for fiscal year 2010.

Background on H-1B Quota or "Cap"

There number of H-1Bs that can be granted each year is limited to 85,000. This includes the 20,000 H-1Bs set aside for applicants who possess advanced degrees from US universities.

Generally, only individuals who have never held H-1B status are subject to the annual quota. This includes those changing status to H-1B for the first time and those who were previously in quota-exempt H-1B status, but are now changing to employers whose petitions are subject to the quota. Petitions for H1B extensions or change of employer (i.e., H-1B transfers) do not count toward the quota. H-1B nonimmigrants employed by universities and affiliated non-profit research facilities are also excluded from the quota.

Time is of the Essence

In each of the past five years, the demand for H-1Bs outpaced supply and the quota numbers were exhausted, often before the fiscal year even began. In FY2009, 169,000 petitions were received during the first five days of filing. In FY2008, USCIS received more than 150,000 submissions on the first day. These high numbers resulted in a need to choose applicants by lottery, at odds against selection of almost 2:1 in the past two years.

Although the current economy may result in a lower number of filings this year, it is likely that the quota will again be depleted very quickly.

Advantages in Converting Existing Employees in a Different Status to H-1B Status

The employer and its existing employees in another nonimmigrant status can benefit by changing to H-1B status. For example, L-1 employees can only be in L-1 status for 5 years (7 years for managers/executives). Although H-1B status is limited to 6 years, employees are eligible for unlimited extensions beyond the sixth year provided they are far along enough in their pursuit for employment-based permanent residency.

TN employees benefit by changing to H-1B status because H-1B nonimmigrants may pursue permanent residency while TN nonimmigrants are required to maintain "nonimmigrant intent."

New LCA System

LCA (Labor Condition Application) is a document that must certified by the Department of Labor before an H-1B petition is filed with USCIS. DOL is in the process of converting to a new LCA system and has stated that there will be delays in the issuance of LCAs. Therefore, attaining LCAs well in advance of April will be critical to ensure that the H-1B petitions are timely filed.

For the above reasons, employers are advised to let their immigration counsel know ASAP if they will be filing H-1B cap cases this April.