On April 1, 2007 the USCIS will begin accepting new H-1B petitions subject to the Fiscal Year 2008 (FY 2008) numerical cap. The effective start date of employment for these petitions can be no sooner than the first day of FY 2008, which is October 1, 2007. However, employers can file these petitions six months prior to the requested start date, so April 1, 2007 is the start of the FY 2008 H-1B filing season.

We anticipate that the FY 2008 H-1B numbers will be exhausted very quickly. Last year, the FY 2007 H-1B annual numerical cap was reached on May 26, 2006 - less than two months from the time employers were allowed to start filing H-1B petitions! We expect the FY 2008 H-1B visa cap to be reached at least as quickly this year, if not sooner.

Beginning in 2006, as a result of the H-1B Visa Reform Act of 2004, a second cap of 20,000 additional H-1B visas was created for individuals who hold a Master's or higher degree from a U.S. educational institution. The FY 2007 cap for U.S. advanced degree holders was reached on July 26, 2006 and we expect these numbers to be exhausted just as quickly, if not more so, in FY 2008.

There is no way to determine when either the regular H-1B cap or the Master's degree H-1B cap will be reached for FY 2008, but we would encourage employers should start these cases now to have the best chance to secure an H-1B out of the FY 2008 numbers. To file cases on April 1, 2007 preparation of these H-1B petitions should be started as soon as possible. Waiting until April to start any new H-1B petitions puts you and your prospective employees at risk of not getting an H-1B number from this year's cap.

Employers should be aware of candidates who may need a cap-subject H-1B. For example, employees working on F-1 Optional Practical Training (OPT) will need a cap-subject H-1B. New college graduates who may be hired this spring or summer may need a cap-subject H-1B. Candidates who already have H-1B status through a university or a non-profit research organization -may need a cap-subject H-1B. Employers may also wish to review employees in other nonimmigrant categories such as TN or L-1B who, for strategic reasons, may benefit from being changed to H-1B.

Clients should contact our office with questions and to start any new cap H-1B cases. We would encourage clients to remind hiring managers and recruiters of this very important issue.

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