On April 1, 2008, the U.S. Citizenship and Immigration Services (USCIS) will begin to accept H-1B petitions subject to the H-1B quota for fiscal year 2009 (October 1, 2008 through September 30, 2009). The H-1B quota for fiscal year 2009 will remain at 65,000. Although many business organizations strongly lobbied for an increase in the H- 1B quota last year, Congress did not pass legislation increasing the quota. The H-1B quota for fiscal year 2008 (October 1, 2007 through September 30, 2008) was met in one day on April 2, 2007. The USCIS received more than 123,000 petitions filed against the fiscal year 2008 H-1B quota of 65,000. It is assumed that the number of filings against the fiscal year 2009 H-1B quota will only increase. Therefore, it is assumed that the H-1B quota for fiscal year 2009 will also be met in one day and that the USCIS will have to conduct a computerized random selection process to determine which of the filed petitions will be processed under the quota.

In addition to the H-1B quota being met in record time last year, the exemption from the H-1B quota for foreign nationals who have earned U.S. Master’s or higher degrees was also met in record time. This exemption is limited to 20,000 petitions. This exemption was exhausted in approximately 30 days. Again, many business organizations lobbied for either a increase in this exemption or the elimination of the numerical limitation of 20,000 for this exemption. However, Congress did not pass legislation to expand this exemption. Therefore, the exemption will again be limited to 20,000 in fiscal year 2009. Due to increasing demand for this exemption each year, it is anticipated that this exemption may be exhausted in as little as one day during the fiscal year 2009 quota and that the USCIS may be forced to run a separate lottery for this exemption prior to conducting the regular H-1B quota random selection process.

Due to the increasing demand for initial H-1B petitions subject to the H-1B quota, employers are now commencing the H-1B process for eligible current and potential employees so that the necessary petitions with supporting documents are ready to be filed on March 31, 2008 to be received by the USCIS on April 1, 2008. If employers are not prepared to file the necessary documents on March 31, 2008, they may be unable to possibly take advantage of the fiscal year 2009 H-1B quota or U.S. Master’s Degree or higher degree exemption from the quota. If they are unable to take advantage of the fiscal year 2009 H-1B quota, the earliest that they could employ a quota subject H-1B nonimmigrant would then be October 1, 2009.

Additional information about the fiscal year 2009 H-1B quota will be contained in our firm’s future Immigration Updates when it becomes available.