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Important Preliminary Information Concerning the Temporary Employment of H-1B Nonimmigrants
Released Date: March, 2007

The H-1B category is for foreign nationals coming temporarily to fill a position in a specialty occupation for a U.S. employer. A specialty occupation is one for which a bachelor's or higher degree or equivalent is normally the minimum requirement for entry into the particular position.

As now amended, the Immigration and Nationality Act establishes a cap of 65,000 new H-1B Petitions per year and assigns responsibility to the Department of Labor (DOL) for the implementation of a process known as the Labor Condition Application, which protects the wages and working conditions of U.S. workers and similarly employed H-1B's. There is a set-aside of 6,800 of this cap for Free Trade Visas for natives of Chile and Singapore. Furthermore, an additional 20,000 H-1B petitions may be approved for individuals with Master's Degrees or above issued by a U.S. institution of higher education. Please note, however, that foreign nationals who will be employed by an institution of higher education and foreign nationals to be employed at a nonprofit research organization or governmental research organization are exempt from the cap.

The 65,000 cap on new H-1Bs in effect since FY 2004 (October 1, 2003) has resulted in the quota being reached before the beginning of the applicable fiscal year for the past 3 years. H-1B petitions can be filed up to 6 months in advance of anticipated start date. This permits an H-1B petition to be filed on April 1 for the fiscal year beginning October 1 of that year.

We strongly advise you to contact us at the earliest possible time if you are considering any foreign national for H-1B status since the availability of H-1Bs for the entire fiscal year may be completely used up as early as early April preceding the October 1st fiscal year start date.

Questions and Comments:
If you have any questions or would like more information regarding this advisory, please do not hesitate to contact the team at Azarmehr & Associates, P.C. Please send your questions to: contact@mpalaw.net