Timing Issues for Cap-Subject H-1B Visas

How soon can petitions be filed for the next fiscal year?

April 1st. All petitions for a non-immigrant worker can be filed up to six months in advance of the start date requested, so H-1B petitions for a new fiscal year, which begins on October 1, can be filed as of the preceding April.

What about people whose work authorization will expire before the next fiscal year begins on October 1?

For some types of positions and some individuals, alternative visa categories may be available to allow them to continue working, or at least remain in the United States, until the next fiscal year begins. However, given the length of current H-1B blackouts, there may not be a visa category for which both the job and the individual are currently eligible. The circumstances of each case should be discussed with counsel, to determine if there is an alternative visa category appropriate to the needs of the employer and the circumstances and qualifications of the foreign worker.

What are the alternatives for F-1 students with OPT?

A new regulation was published on April 8, 2008 that enables some F-1 students who have an authorized period of Optional Practical Training to extend their OPT for an additional 17 months, extending the total period permitted from 12 months to 29 months. The two groups of students who may benefit from this rule are:

  1. Students who have completed a U.S. degree in science, technology, engineering or mathematics, and who accept employment with an employer enrolled in the E-Verify employment eligibility verification program. (The E-Verify program is still error-prone and does not provide the employer with safe harbor protections, so any decision by an employer to enroll in E-Verify should be discussed with counsel).
  2. Students who are beneficiaries of a properly filed H-1B petition and change of status request accepted for processing among the H-1B cap cases.

Do you have more questions about timing issues for cap-subject H-1B visas? Contact Karin Wolman for a consultation today!

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