Many United States businesses look to the H-1B nonimmigrant status program to obtain temporary work authorization and resident status for foreign workers in specialty occupations that require at least a baccalaureate degree or the equivalent years of experience in theoretical or technical expertise in specialized fields, such as scientists, engineers, corporate executive personnel, architects, teachers, accountants, doctors and computer programmers. 

On Monday, April 2, 2007, the U.S. Citizenship & Immigration Services (USCIS) began accepting H-1B petitions for fiscal year 2008, which runs from October 1, 2007 to September 30, 2008. By Tuesday, April 3, 2008, USCIS announced that it has received approximately 150,000 cap-subject H-1B petitions to meet the congressionally mandated FY08 cap limit of 65,000. In other words, the supply of 65,000 H-1B numbers did not last through opening-day of the filing period.

As a result, USCIS will use its random selection process for all cap-subject H-1B petition filings received on April 2, 2007 and April 3, 2007, and will reject and return all petitions received on April 2 and April 3 that are not randomly selected for an available H-1B number, and presumably those filed after April 3. Without Congressional intervention, there will be no available H-1B numbers for the next 1½ years.

What Does This Mean For U.S. Employers?

Given the unavailability of H-1B numbers for 1½ years, U.S. employers should immediately:

  • Assess their need to hire foreign nationals in H-1B status and discuss H-1B cap-exempt options with competent immigration counsel.
  • Contact competent immigration counsel to discuss alternative strategies to combat the H-1B cap and meet their companies’ needs.
  • Contact competent immigration counsel to discuss available nonimmigrant and immigrant options to facilitate the hiring of foreign nationals.
  • Contact Congress and urge them to pass a comprehensive immigration reform measure that will meet the needs of the U.S. economy.