H-1B Numbers Open Up On April 1 For October 1, 2010

Monday, April 5, 2010 - 01:00

Business Immigration Group

Kramer Levin Naftalis &Frankel LLP

Start Date

On April 1, 2010, U.S. Citizenship and Immigration Services will begin accepting new H-1B petitions for professional positions. Although the petitions can be filed on April 1, the start date for the employment can be no earlier than October 1, 2010.

We believe the annual H-1B quota will be fully subscribed within a relatively short period after April 1, so we recommend that you file your new H-1B petitions on that date or shortly thereafter.

We anticipate that with the economy picking up speed, this year the numbers will go quickly, just as they did in the years prior to 2009.

Please consider reviewing your employment needs now to determine whether you wish to sponsor any of your current or potential employees for H-1B status. This includes those professionals already employed by you in F-1 Optional Practical Training status, TN status, or J-1 or J-2 status, as well as those you plan to bring on board after October 1, 2010.

International Students

Please note that even if you plan to hire a foreign national who will soon graduate from a U.S. university, and will be working with an employment authorization card, you should still file an H-1B petition. Here's why: The Problem

Suppose you plan to hire someone who graduated from a U.S. university in January 2010, and that person has an employment authorization card valid for one year. After January 2011 your employee will no longer be work authorized. That's why you should file your H-1B petition on April 1, 2010, requesting that the employee's status be changed to H-1B effective October 1, 2010.

A Variation on the Problem

Suppose you already hired a graduate of a U.S. university, whose employment authorization will expire on April 25, 2010. If you file an H-1B petition on April 1, 2010 requesting a change of status to H-1B, and if that petition is accepted for processing, then under relatively recent rules, this person's employment authorization will be automatically extended until the October 1 date when the change to H-1B status becomes effective.

What About Foreign Nationals with Advanced Degrees?

There are an additional 20,000 H-1B numbers, on top of the annual allotment of 65,000, for those foreign nationals who have earned a master's or higher degree from a U.S. university. But even for these people, we urge you to file early. Last year, those additional H-1B numbers were all gone very quickly.

As in past years, the H-1B cap does not apply to foreign nationals who already hold H-1B status and are seeking to change their H-1B employer and/or extend their H-1B stay in the United States.

We encourage you to contact us now regarding your H-1B hiring needs.

Please email the authors at truthizer@kramerlevin.com or mkoestler@kramerlevin with questions about this article.