Employers should prepare now to start filing H-1B petitions on April 1, 2007 for new and existing employees who will be eligible for a first-time H-1B visa to begin employment on or after October 1, 2007. This alert does not apply to current employees in H-1B status.

Timing Is Everything

As of April 1, 2007, US Citizenship and Immigration Services (USCIS) will begin to accept advance filings of H-1B visa petitions for employment in fiscal year (FY) 2008, including cases eligible for the 20,000 H-1B cap exemption for employees holding advanced degrees from US universities. H-1B petitions may be filed up to six months prior to the date the prospective employee is to begin work. The CIS FY 2008 begins on October 1, 2007.

Demand Exceeds Supply

Employers should note that demand for H-1B visas has been extremely high over the past few years. Last year's (FY 2007) H-1B allotment was exhausted on May 26, 2006, and the allotment for advanced degree-exemption H-1Bs was reached on July 26, 2006. In light of the rapid exhaustion of last year's allotment and the unavailability of new H-1B visas, the allotment for FY 2008 is expected, once again, to be exhausted very quickly.

Under the law, the annual cap for H-1B visas remains at 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 available under the law, 6,800 will be set aside for H-1B visas made available exclusively to Chile and Singapore nationals by the US-Chile and US-Singapore Free Trade Agreements. Subtracting those visas from the total allotment effectively reduces the number of available H-1B visas to 58,200.

Don't Wait

Again, employers are advised to start the petition-filing process as soon as possible by requesting FY 2008 H-1B visas before the cap is exhausted, which may happen very quickly.