Immigration regulations permit the filing of an H-1B petition as early as six months before the intended start date of the employment. Therefore, it will be possible to file H-1B petitions seeking an October 1, 2012 start date for “new” petitions on April 1.

As before, there are 65,000 H-1B numbers available each year, plus an additional 20,000 for applicants who possess a Masters Degree from a U.S. university.

Unlike past years, the economic downturn resulted in far less demand for H-1B numbers during the current fiscal year. During the previous few years, more petitions were filed in the first two days of April than there were numbers available. This year, numbers remained available until December, 2011. We do expect an increase in demand this year, but we do not foresee the same urgency to file on or close to April 1 as in years past.

Filing early in April is still advisable in the following situation:

• The applicant is currently working for the employer in student (F-1 OPT) status
   

• The OPT employment authorization will expire before October 1
   

• The employer is confident of its desire to retain the nonimmigrant worker without interruption beyond the expiration of the OPT status.
   

• The applicant is a highly skilled worker who may consider an offer from a competitor who is willing to proceed with an H-1B petition without delay.

Please advise our office as soon as possible if you may be requesting our assistance with a new H-1B which we haven't already begun to process.

Once the new numbers are gone, it will no longer be possible to obtain “new” H-1B status prior to October 1, 2013 unless one of the following exceptions apply.

• Extensions of H-1B status for aliens currently employed by the petitioner.
   

• “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition will require a number under the cap and will not be approvable when the numbers run out!].
   

•  “New” employees for a private employer who would normally be subject to the “cap” but who will be employed “at” (on the physical premises of) an exempt employer as described below.
   

•  “New” employees currently employed in H-1B status with an exempt employer as described below who will continue in that exempt employment and who are seeking concurrent, part-time employment with an otherwise cap-subject employer.
   

• Petitions on behalf of citizens of Chile and Singapore (those numbers remain current even now for the current fiscal year!)

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

• institutions of higher education
   

• a nonprofit organization related to or affiliated with an institution of higher education. Caution: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education. However, the term affiliate is broadly defined to include a non-profit employer who has a “cooperative relationship” with an institution of higher education.
   

• a nonprofit research organization or governmental research organization

Alternatives to the H-1B

The eventual shortage of H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

• TN visa status for citizens of Canada or Mexico (now available in increments of three years)
   
• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year • E-3 visa status for citizens of Australia
   
• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)
   
• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant • O-1 visa status for aliens of extraordinary ability

Further details about these options may be found on our web site at www.costariccio.com.

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

• An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”
   

• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver • An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

Please feel free to contact us if you have any questions.