The H-1B crisis: file by April 2nd 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.

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.

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

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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