The H-1B crisis: file by April 2nd or forever hold your peace
VIA AL DIA
By Wendy Hess
The traditional marriage ceremony has a line where the clergy or official performing the ceremony, prior to pronouncing the couple “husband and wife”, asks the crowd gathered for the ceremony: “If anyone present today has any objections to this marriage, speak out or forever hold your peace”. This line holds true for H-1B processing: If you want a new H-1B and you are subject to the H-1B cap (because you’re not filing an extension, you haven’t held H-1B status over the last 6 years or your prospective employer is not a non-profit academic institution or affiliated with one), file your new H-1B by April 2, 2007, or forever hold your peace—at least until October 1, 2008.
Why the rush and the panic? There are only 65,000 H-1B visas available each year, with 20,000 extra reserved for those who hold U.S. Masters’ degrees. You can file an H-1B application 6 months before the fiscal USCIS year starts—on April 1, 2007, for a start date of October 1, 2007. Last year we ran out of H-1B visas for an October 1, 2006 start date in May of 2006; this year promises to be even worse.
Specifically, USCIS and others have warned that there is a very good chance that ALL H-1B visas will be used up on the very first day of filing. How could this possibly happen? Simple: every attorney, client and company has been waiting since May of 2006 to literally pounce on the April 1, 2007 filing date. In my office we have been working nights and weekends to meet our deadlines and my colleagues throughout the U.S. report that they, too, are doing the same. With over 12,000 immigration lawyers and millions of U.S. companies, determining when the cap will be reached is a favorite past time. In fact, our recent American Immigration Lawyer’s bulletin cautions as follows:
“There is quite a bit of chatter about how soon the FY 2008 H-1B quote will be exhausted, with some predictions that the regular cap will be reached within the first day or first two days of filing. There is, of course, no way to know if this speculation will be true, but it appears that many attorneys are operating on the assumption that it could be so”.
Filing these cases is extremely problematic this year, for the April 1st date of permitted filing falls on a Sunday. If the petitions arrive too early—on a Friday—they will be rejected as untimely filed. Thus, the first day that the petitions can arrive at the two USCIS Service Centers designated for filing—Vermont and California—is Monday, April 2nd. That means a Friday, March 30 or Saturday March 31 federal express filing.
This problem of when, where and how to file is further compounded by the fact that each H-1B requires an on line Labor Condition Application (“LCA”), which can only be accessed 180 days before the required H-1B start date and each LCA requires an original signature by the Employer ( very difficult when the Employers are located nationwide). Due to heavy demand, the Labor Condition Application machine has already crashed once and as we get closer to the deadline, we expect it to either crash altogether or at least become unavailable for prolonged periods of time.
So, a word to the wise: If you need a new H-1B, get ready to file NOW or forever hold your peace!
By Wendy Hess
The traditional marriage ceremony has a line where the clergy or official performing the ceremony, prior to pronouncing the couple “husband and wife”, asks the crowd gathered for the ceremony: “If anyone present today has any objections to this marriage, speak out or forever hold your peace”. This line holds true for H-1B processing: If you want a new H-1B and you are subject to the H-1B cap (because you’re not filing an extension, you haven’t held H-1B status over the last 6 years or your prospective employer is not a non-profit academic institution or affiliated with one), file your new H-1B by April 2, 2007, or forever hold your peace—at least until October 1, 2008.
Why the rush and the panic? There are only 65,000 H-1B visas available each year, with 20,000 extra reserved for those who hold U.S. Masters’ degrees. You can file an H-1B application 6 months before the fiscal USCIS year starts—on April 1, 2007, for a start date of October 1, 2007. Last year we ran out of H-1B visas for an October 1, 2006 start date in May of 2006; this year promises to be even worse.
Specifically, USCIS and others have warned that there is a very good chance that ALL H-1B visas will be used up on the very first day of filing. How could this possibly happen? Simple: every attorney, client and company has been waiting since May of 2006 to literally pounce on the April 1, 2007 filing date. In my office we have been working nights and weekends to meet our deadlines and my colleagues throughout the U.S. report that they, too, are doing the same. With over 12,000 immigration lawyers and millions of U.S. companies, determining when the cap will be reached is a favorite past time. In fact, our recent American Immigration Lawyer’s bulletin cautions as follows:
“There is quite a bit of chatter about how soon the FY 2008 H-1B quote will be exhausted, with some predictions that the regular cap will be reached within the first day or first two days of filing. There is, of course, no way to know if this speculation will be true, but it appears that many attorneys are operating on the assumption that it could be so”.
Filing these cases is extremely problematic this year, for the April 1st date of permitted filing falls on a Sunday. If the petitions arrive too early—on a Friday—they will be rejected as untimely filed. Thus, the first day that the petitions can arrive at the two USCIS Service Centers designated for filing—Vermont and California—is Monday, April 2nd. That means a Friday, March 30 or Saturday March 31 federal express filing.
This problem of when, where and how to file is further compounded by the fact that each H-1B requires an on line Labor Condition Application (“LCA”), which can only be accessed 180 days before the required H-1B start date and each LCA requires an original signature by the Employer ( very difficult when the Employers are located nationwide). Due to heavy demand, the Labor Condition Application machine has already crashed once and as we get closer to the deadline, we expect it to either crash altogether or at least become unavailable for prolonged periods of time.
So, a word to the wise: If you need a new H-1B, get ready to file NOW or forever hold your peace!
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