On April 1, 2009 US Citizenship and Immigration Services (USCIS) will begin accepting advance filings of H-1B visa petitions for employment in fiscal year (FY) 2010 (starting October 1, 2009). Employers should prepare now to start filing H-1B petitions on April 1, 2009 for new and existing employees who will be eligible for a first-time H-1B visa to begin employment on or after October 1, 2009.

The annual cap set by Congress on H-1B visas is 65,000, with an additional 20,000 visas available for beneficiaries with advanced degrees from US colleges or universities. Employers should be aware, however, that of the 65,000 H-1B visas allotted by Congress, 6,800 will be set aside for H-1B1 visas made available exclusively to Chile and Singapore nationals by the US-Chile and US-Singapore Free Trade Agreements. This reduces the total allotment of available H-1B visas to 58,200.

Over the past several years, the 58,200 allotment has been exhausted within one day, as has the allotment of an additional 20,000 visas for beneficiaries with advanced degrees from US colleges or universities. Last year, USCIS received approximately 163,000 petitions within the first five days of the eligible filing period. Although demand might be lower this year due to the current state of the economy, employers should file on April 1, 2009 nonetheless if they need to employ foreign workers in the H-1B category.

Employers with current F-1 students who intend to file H-1B petitions should note that in April 2008, the Department of Homeland Security (DHS) expanded "cap-gap" relief for all F-1 students with pending H-1B petitions. USCIS cap-gap relief extends the authorized period of stay and work authorization of any F-1 student participating in Optional Practical Training (OPT) and who is the beneficiary of a timely filed H-1B petition that was granted by, or is pending with, USCIS. The extension of status and work authorization terminates on October 1 of the fiscal year for which the H-1B visa was requested. The rule also extends the OPT period to 29 months for F-1 non-immigrant students who (1) complete a science, technology, engineering or mathematics (STEM) degree and (2) accept employment with an employer enrolled in USCIS' E-Verify employment verification program. For additional information on F-1 students' cap-gap relief, please see our April 2008 Immigration Alert.