This is the “last call” for H-1B’s. April 1, 2009 will soon be upon us, and will again bring a flood of H-1B applications from employers seeking to claim an H-1B in the upcoming fiscal year’s quota. H-1B classification applies to employment positions which qualify as “specialty occupations,” meaning jobs which are typically associated with attainment of at least a Bachelor’s degree (or equivalent) in a specialty area.

The Immigration and Nationality Act allows approval of only 65,000 new H-1B’s during the federal fiscal year (October 1 through September 30.) Up to 20,000 H-1B applications involving an employee with a U.S. Master’s (or higher) degree are exempt, making the annual quota, effectively 85,000 new H-1B’s. Employers may apply up to 6 months in advance of the October 1 start of the fiscal year, making April 1 the important date for filing.

In the past several years, the number of applications filed has far outstripped the available supply of H-1B’s, exhausting the quota on April 1 or in the first week of April. Employers wishing to secure an H-1B but who failed to file the application on April 1 have found themselves with few or no options for hiring or retaining a valuable employment candidate. Employers are urged to identify any candidates for H-1B visas now, so as to enable an April 1 filing. There is still time to prepare an H-1B for April 1 filing.

The annual quota does not apply to extensions of existing H-1B status, or to changes of employers where the employee already has an approved H-1B. The annual quota also does not apply to institutions of higher education or their affiliates, or to non-profit research or government research organizations. The annual quota does apply however where an employee with an H-1B leaves a quota-exempt employer for a quota-subject employer.

H-1B Applications by Financial Institutions Receiving Aid

The economic stimulus bill recently signed into law by President Obama contains a provision imposing additional H-1B requirements on those employers that received funding under Title I of the Emergency Economic Stabilization Act of 2008 or section 13 of the Federal Reserve Act. These employers seeking a new H-1B during the next two years must comply with provisions applicable to H-1B “dependent” employers. H-1B dependent employers are generally those with at least 15% of employees on H-1B visas.

Dependent employers must make these additional attestations:

  • that placement of the H-1B employee did not and will not displace a U.S. worker (either with the petitioning employer or with an employer contracting for the H-1B employee’s services) in an essentially equivalent job during the period 90 days before and 90 days after filing the H-1B petition, and
  • that the employer has taken good faith steps to recruit U.S. workers at a compensation level and using recruitment procedures standard to the industry, and that the position has been offered to any qualified U.S. worker.

While these attestations may appear straightforward, there are multiple issues that may arise in documenting, to Department of Labor satisfaction, what constitutes an adequate recruitment procedure, adequate compensation and when displacement has occurred for these purposes.