On April 1, 2008, employers may begin filing new H-1B petitions with the U.S. Citizenship and Immigration Services ("USCIS") for Fiscal Year 2009, which begins October 1, 2008. The quota or "cap" for new H-1B petitions is 65,000 per year, and of these, 6,800 visas are set aside based on Free Trade Agreements with Chile and Singapore. An additional 20,000 H-1Bs are available for beneficiaries with U.S. master's degrees. In April 2007, USCIS received several thousand petitions in excess of the cap limit on the first two days of filing and conducted a random lottery, accepting for adjudication only those petitions that were selected in the lottery. The filings are expected to be high again this year, and the USCIS is again expected to use the lottery system for allocation of H-1B approvals.

The USCIS announced that it just published an interim rule that changes the landscape of the H-1B lottery system: It will now deny petitions where it finds multiple filings for the same employee; it has extended the lottery period from two days to a five-day period during which petitions are received to be included in the consideration for the H-1B lottery; and it now plans to consider all master's degree cases first, permitting leftover numbers to be used for the allotment of "regular" H-1B petitions.

Just a reminder: the H-1B cap applies only to "new" H-1B petitions. The following H-1B petitions are not subject to the cap: extensions of stay; most petitions to change employer; petitions for foreign nationals seeking employment with institutions of higher education, nonprofit research organizations and government research organizations; and petitions for physicians who previously held J-1 status and have applied for waiver of the two-year residence requirement based on service in an underserved area. Changes of employer from an "exempt" employer to a "non-exempt" employer will likely be subject to the cap.

Employers may also wish to consider alternatives to H-1B status for temporary workers. Please consult immigration counsel regarding specific eligibility requirements and individual qualifications for specific visa categories.