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Immigration: 2007 H-1B Cap Reached on First Day of Filing

The new allocation of H-1B slots is made available on October 1 of each calendar year, since that date is the first day of the Government’s fiscal year. Since petitions for that status may be filed no sooner than six months prior to October 1, the filings for this year’s H-1B filings took place on April 2, the first working day after the start of the six-month period. There had been speculation that the 65,000 H-1B slots would be oversubscribed and that as many as 80,000 petitions might be filed on April 2. In point of fact, apparently more than 133,000 were filed, although the exact number will not be known for several weeks. As a result of that, there will be a “lottery” to determine which of the H-1B petitions will even be processed. There are rumors of congressional action to provide for processing of all the petitions filed as of April 2, but there has been no substantive action at this time.

The number of petitions filed for a separate category of H-1Bs not covered by that cap, and which is restricted to employees with a masters degree from a U.S. college or university, has not exceeded the 20,000 cap for that category. Apparently, about 8,000 visas are still available.

The implications of this situation to recruiters are obvious. In times past, even though the numbers of H-1B visas were reduced, recruiters could count on the fact that, although there might be a delay in getting an H-1B, the probability of obtaining that authorization at the appropriate time in the future was good. However, unless action is taken by Congress, recruiters will have to reevaluate their assumptions and practices with respect to potential applicants who do not presently hold an H-1B visa and, instead, have entered the U.S. on some other status, such as a student status, and who want to be integrated into the U.S. workforce. No assurances of work authorization can be given or counted on.

Obviously, there are other alternatives to H-1B status which can be utilized in the appropriate situation, but, in each and every instance, their applicability is much more limited than the H-1B.

Finally, since an employer cannot ask about an applicant’s immigration status prior to extending a job offer, it makes sense to make sure that recruiters are informed of the limits which exist upon their inquiries of prospective employees and are also alerted to get appropriate advice before extending a final job offer.