Upcoming H1B Cap Season : Business Considerations
Posted Nov 10, 2006
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As regular readers of MurthyDotCom and the MurthyBulletin know, employers may begin filing cap-subject H1B petitions from April 1, 2007, for a start date on or after October 1, 2007. It is likely that the cap again will be met very quickly for this upcoming fiscal year, and any delay in filing H1B petitions may mean that another cap year is missed. The H1B cap has been a major issue in immigration since it was reduced in Fiscal Year (FY) 2004 to the quota levels of the pre-technology era. With the rush expected in April 2007, it is anticipated that the H1B cap will be reached very early, before the FY even begins. This is all the more likely with a relatively strong economy and low unemployment rates in the U.S. In light of this, we at the Murthy Law Firm offer the following suggestions to employers and employees who need to file H1B petitions under the FY2008 cap.
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Begin Interviews ASAP for Regular H1B Cap-Quota Cases
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It is important for an employer, who has not been able to fill positions with U.S. workers and who anticipates that filing under the FY2008 cap will be necessary, to start interviewing potential H1B candidates without delay. H1B petitions should be ready to file so they can reach the USCIS as close to April 1, 2007 as possible. Employers should be able to have their attorneys assess whether candidates are qualified for the H1B positions in January and February 2007, at the latest. This way, petitions can be prepared and completed by March and simply be waiting for transmission on the last day of March 2007. Employers should remember that the candidates must have bachelors' degrees or the equivalent at the time of filing. A candidate may not be eligible to file under the FY2008 cap if s/he will not have the credentials or qualification on the filing date, by April 1, 2007. This is particularly so for those who are subject to the H1B regular cap.
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Advanced-Degree Cap Quota Also Available
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In addition to the "regular" H1B cap for employees with bachelors' degrees or the equivalent, there are 20,000 cap numbers for candidates with U.S. masters' degrees or above. These cap numbers generally remain available a bit longer than the regular cap. Such candidates, therefore, may be particularly attractive to employers needing to fill skilled positions for which there are not sufficient U.S. workers available. These employers must be prepared to file H1B petitions to obtain the required technically and professionally qualified H1B employees. Employees must have completed all of the degree requirements as of the time of filing the H1B petitions. The good thing about the advanced-degree quota is that the advanced degree does not need to be a requirement for a job in order to request or obtain an advanced-degree number.
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Should Not Risk Rejection, Denial, or even Lengthy Troubling RFE
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There is a lot at stake with the H1B cases. These cases must be properly filed or they run the risk of rejection or denial. Every year, people come to our firm with improperly prepared cases that have been rejected. These are often filed directly by employers without the benefit of attorneys. The reasons are sometimes as simple as failure to include the proper fees or sign in the correct places on the forms. Mistakes of this nature generally cause a case to be rejected entirely by the mailroom at the USCIS, resulting in the whole filing being sent back. In other cases, our firm sees difficult Requests for Evidence (RFEs) or outright denials because cases are not properly documented and presented. There is generally no time to correct mistakes and re-file, because of the cap issue. Therefore, we strongly suggest using a qualified, experienced immigration attorney to prepare and file H1B cases. Potential employees appreciate employers who care enough to take proper care of their cases. This can be a valuable recruiting tool when seeking the best, most highly-qualified candidates.
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Get Involved in the Lobbying Process
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Employers that have difficulty finding U.S. workers and face problems using H1B workers because of the cap, should make their voices heard. The cap is a creation of Congress that can only be changed by Congress. Information follows that explains how to let Congress know the problems your company faces because of the cap. See article our MurthyBulletin article, also from November 10, 2006, Contact Congress for More H1Bs and Visa Numbers.