Spring is right around the corner, and so is the arrival of the H-1B work visa filing period. The H-1B is a nonimmigrant visa category that allows U.S. employers to hire skilled foreign workers for temporary employment. There is currently a congressionally-mandated cap of 65,000 on the number of new H-1B visas that can be granted for the new fiscal year starting on October 1, 2010. The filing period opens on April 1, 2010.

In recent years, the Citizenship and Immigration Service had received twice as many applications as there were spots available by the first few days in April, leading to only half of the applications being accepted for processing. Due to the slower economy, last year's visas were available until late December. Since it is difficult to predict when the cap will be met this year, wise employers will try to plan in advance for their annual H-1B hiring needs and file their petitions in the spring if they will be subject to the cap.

The cap applies to petitions for new H-1B visas, including petitions to change from F-1 student visa status to H-1B work visa status. Petitions to extend the amount of time for a current H-1B worker are typically not subject to the cap. The Citizenship and Immigration Service will continue to accept petitions for new H-1B employment where the petitioner/employer is not subject to the annual cap. To qualify as a ‘cap exempt’ petitioner, the employer must be: (I) an institution of higher education or a related or affiliated nonprofit entity; (II) a nonprofit research organization; or (III) a governmental research organization.

In years past, the preparation for filing an H-1B visa petition moved along quite quickly, allowing employers to decide at the last minute whether they wanted to move forward with hiring an H-1B employee. However, there are new organizational procedures in place this year, including the new iCERT system for Labor Condition Applications, which makes the preparation time for H-1B petitions slightly longer. Therefore, employers should carefully evaluate their needs and expectations regarding hiring or continuing to employ foreign nationals within the next year. Human resource personnel should plan early, as the cap will likely be reached more quickly than last year.

If you have any questions about this alert or other immigration law issues, please contact Casey Nolan, or another member of the Gray Plant Mooty Immigration practice group.