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Planning for the Fiscal Year 2009 H-1B Cap

Planning for the Fiscal Year 2009 H-1B Cap. February 6, 2008. What is the H-1B Cap?. An annual limit of 65,000 new H-1B visas may be issued each fiscal year, however 6,800 are set aside for H-1B1s under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements

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Planning for the Fiscal Year 2009 H-1B Cap

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  1. Planning for the FiscalYear 2009 H-1B Cap February 6, 2008

  2. What is the H-1B Cap? • An annual limit of 65,000 new H-1B visas may be issued each fiscal year, however 6,800 are set aside for H-1B1s under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements • 20,000 additional H-1B visas are available for foreign workers holding a master's degree or higher from a U.S. academic institution • April 1, 2008, USCIS accepts new H-1B filings for employment starting October 1, 2008, day 1 of fiscal year 2009 (FY2009) • Last year, the cap was reached on April 2, 2007 (first business day for filing)

  3. The H-1B Cap Yesterday and Today • Lead up to Y2K increase • Sunset in legislation • Failed proposed legislation • Why H-1B cap was hit on April 2, 2007 • How did USCIS handle the cap last year? • How will H-1B cap be handled by USCIS this year? • No legislation has yet been passed, no changes expected • May see a change with respect to multiple/duplicate filings

  4. H-1B Eligibility • Employee has a specialized bachelor’s degree (or higher) at the time of filing • Position requires a specialized bachelor’s degree (or higher) • Employer is willing to pay the prevailing wage for the position • H-1B visa number is available under the annual numerical limitation (H-1B cap)

  5. Who is H-1B Cap Subject? • Those subject to the cap include: • Those seeking to enter the U.S. to work in a specialty occupation • Those in the U.S. seeking to change to H-1B status (i.e. from F-1 status), as well as those in TN status wishing to apply for a green card, or those in L-1 status approaching the maximum L-1 time limit • H-1B holders changing from a cap-exempt employer to a cap-subject employer • Those not subject to the cap include: • Individuals who have been previously counted under an H-1B quota within the past six years • Individuals employed with H-1B-exempt employers (universities, nonprofit research orgs, and government research orgs)

  6. Sidley enables employee to complete questionnaire online Employee completes questionnaire and provides required documents Sidley prepares forms for submission to DOL and CIS Target filing date: April 1, 2008 Employment start date: October 1, 2008 H-1B Process – Overview

  7. H-1B Cap Gap Problem • Cap Gap = the gap between Optional Practical Training (OPT) and H-1B start date • 30/60 day grace periods extend ability to change status • No hope of “Cap Gap” relief from Congress • F and J visa holders may have to leave country • Possible solutions to “Cap Gap”: • Extend F-1 status • CIS has approved cases where OPT + ends a few days prior to October 1

  8. Tales From the Front H-1B Cap Strategy: Case Studies • Work abroad (virtual office or foreign office) • visits to U.S. in B-1 • B-1 in lieu of H-1B • Argue for H-1B exemption • File for green card (EB-2 vs. EB-3 issue) • Extend graduation date • Enroll in a Master’s degree program with CPT • Ask whether employee is extraordinary • Consider employee’s nationality – TN, H-1B1, E-3

  9. FAQs • Can the employee travel internationally during the process? • Travel before April 1, 2008 with valid F-1 visa • Travel between April 1, 2008 and October 1, 2008 • Travel after October 1, 2008 with H-1B visa • How can the employee obtain an H-1B visa for international travel after October 1, 2008? • Will H-1B status affect withholding of taxes on the paycheck? • What steps should be taken if the employee changes either the work location or client engagement? • What are the employer’s requirements for LCA compliance? Click here to access Sidley’s additional FAQs on the H-1B cap, located at www.sidley.com.....

  10. Statutes, Regulations and Other Guidance for Visa Categories Discussed • H-1B and H-1B1 • 8 USC §1101(a)(15)(H); 8 USC §1184(g), (i) and 8 C.F.R. §214.2(h) • 9 FAM §41.53 [FAM = Foreign Affairs Manual] • TN • 8 USC §1184(e); 8 C.F.R. §214.6 and 9 FAM §41.59 • E-1, E-2 and E-3 • 8 USC §1101(a)(15)(E); 22 C.F.R. §41.51 and 9 FAM §41.51 • L-1 • 8 USC §1101(a)(15)(L); 8 C.F.R. §214.2(l) and 9 FAM §41.54 • O-1 • 8 USC §1101(a)(15)(O); 8 C.F.R. §214.2(o) and 9 FAM §41.55 • F-1 • 8 USC §1101(a)(15)(F); 8 C.F.R. §214.2(f) and 9 FAM §41.61 • J-1 • 8 USC §1101(a)(15)(J); 8 C.F.R. §214.2(j) and 9 FAM §41.62

  11. Legislation Affecting the H-1B Cap • Legislation enacting the H-1B category, temporarily raising the cap until 2003, and providing for the additional 20,000 visa numbers for U.S. Master’s • Immigration Act of 1990 [Pub. L. 101-649, 104 Stat. 4978, (Nov. 29, 1990)] • American Competitiveness and Workforce Improvement Act of 1998, aka “ACWIA” [Title IV, Pub. L. 105-277, 112 Stat. 2681–641, (Oct. 21, 1998)] • American Competitiveness in the Twenty-First Century Act, aka “AC21” [Pub. L. No. 106-260, 114 Stat. 1251, 1254 (Oct. 17, 2000)] • H-1B Visa Reform Act [as part of the Consolidated Appropriations Act of 2005, Pub. L. 108-447, 188 stat. 2809, division J, title IV, subtitle B (Dec. 8, 2004)]

  12. Legislation Affecting the H-1B Cap • Some failed legislation since 2004 • SKIL Bill, Bill # S.2691, “Securing Knowledge, Innovation and Leadership Act” introduced May 2, 2006 by John Cornyn • Secure America and Orderly Immigration Act (S. 1033), a bill proposed on May 12, 2005 by Edward Kennedy and John McCain • The Comprehensive Immigration Reform Act of 2007, or, in its full name, the Secure Borders, Economic Opportunity and Immigration Reform Act of 2007 (S. 1348) introduced May 9, 2007 by Harry Reid • A related bill, (S. 1639), introduced June 18, 2007 by Edward Kennedy

  13. Additional Legal Resources • Labor Condition Application Regulations • 20 C.F.R. §655 Subpart H • Change of Status Regulations • 8 U.S.C. §1258 • 8 C.F.R. §248

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