New H-1B Visa Applications To Be Filed April 1

Employers interested in sponsoring employees for new H-1B visas should be prepared to file their applications on April 1 (or April 2), which is the first day that H-1B visas can be filed. This year, as in recent years, the government has capped the number of available H-1B visas to 65,000 for employees with undergraduate degrees and 20,000 for employees with Master's degrees (or higher) from U.S. colleges. Last year there were around 120,000 H-1B visa applications filed on April 1 and 2, which meant that after a lottery was conducted, about ½ of all applications were rejected outright. Employers are strongly advised not to delay filing their H-1B visa applications beyond April 1 or 2, in order to allow for a chance at having the petition reviewed for acceptance.

In our January Client Alert [PDF] we discussed in depth the criteria necessary to receive the H-1B visa, as well as the process that employers need to go through in order to apply for the visa. There are a few basic things that employers should know when considering sponsoring an employee for an H-1B visa. First, the visa is sponsored by the company for the employee. This means that employers are responsible for all costs associated with the filing of the H-1B visa (there are some limited exceptions regarding premium processing fees and applications for spouses). Second, none of the 65,000 and 20,000 visas will be available until the beginning of the federal government's fiscal year 2009 (FY 2009), which begins on October 1, 2008. This means that if an employee's work authority expires prior to October 1, 2008, the employee might have to discontinue working for your company until the new visa is available (on October 1, 2008). And third, the April 1 filing is only for new H-1B visas. If you wish to hire an employee who currently uses an H-1B visa from another employer you can still apply to transfer that visa to you by applying for the transfer with the government. Transfer applications are not subject to the 65,000 and 20,000 caps; only new H-1B petitions are subject to the caps.

If you have any questions regarding H-1B visas or sponsoring employees generally for visas or the green card, please contact Senior Attorney Kevin Mosher from W&P's Immigration Response Team @ (952) 746-1700.