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Making the H1-B Visa Cut-off for Fiscal Year 2009
In order to timely receive H1-B visas, applications should be filed on April 1, 2008. Prudent employers will be well served in starting to consider their employment needs for the upcoming fiscal year. The FY 2007 numerical cap was reached on April 2, 2007. It is likely that the FY 2008 H1-B cap may also be reached within a day unless Congress acts to raise the cap. Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,000 premium processing fee to have an H1-B visa application adjudicated in 15 days - assuming the USCIS again makes premium processing for H1-B applications an option.
Unless Congress raises the annual H1-B visa cap, employers will have to file their H1-B petitions as early as possible and make use of other visas available to bring temporary workers to the United States for FY 2009. Readers are encouraged to contact their senators and representatives to push for an increase in the H-1B cap.
The "J-1" or "exchange visitor" visa is availableto foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs. First, the prospective employer must establish an approved exchange program. Such program may be sponsored by government agencies, private businesses or educational agencies. The foreign national may then enter the United States for the purpose of doing research, gaining training or studying. Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from 18 months for most trainees to 42 months for professors and research scholars. Certain foreign nationals may be subject to a two-year home residency requirement at the endof their stay.
The TN Status Visa
Employers may continue to sponsor Canadian and Mexican nationals in "TN" status under the North American Free Trade Agreement (NAFTA). This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA. The applicant must have the degree or credentials required for that profession. The TN visa is valid for one year and may be renewed indefinitely. A spouse of an employee in TN status is not eligible for work authorization.
On April 1, 2008, the United States Citizenship and Immigration Service (USCIS) will begin accepting "H-1B" visa applications for the 2009 fiscal year. Last year, the USCIS reached its H-1B visa quota in one day. By late afternoon on April 2, 2007, the USCIS received approximately 150,000 H-1B applications and had to resort to a random selection process to select applications which fell within the quota. All applications which were not selected or applications filed after April 3, 2007 were returned.
It is likely that the USCIS will also reach its H-1B cap for the 2009 fiscal year soon after April 1, 2008. The H-1B visa program enables U.S. employers to hire highly educated foreign professional workers for "specialty occupations" - jobs that require at least a bachelor's degree or the equivalent in the field of specialty. These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise. Holders of these visas can stay in the United States for up to six years.
Prudent employers should start considering and planning their H-1B visa needs for the upcoming fiscal year. It is also advisable for employers to start making contingency plans for bringing temporary professional workers to the United States if the H-1B cap is reached.