Last Call for New H-1Bs For the April Lottery Season

OPT employees and others filing for their first H-1B visa hopefully have already made their plans to file their applications when the lottery season opens on April 1.

If not, we urge you to act now to avoid any last-minute problems.

USCIS will accept applications from April 1-April 7, 2009 for inclusion in this year’s lottery. If the number of applications received during this window are fewer than the cap, then the window will remain open until the cap is reached. In prior years the quota has been reached on the first day and we expect the same to happen this year.

The cap remains unchanged this year with only 65,000 for standard H-1Bs and 20,000 for those holding advanced degrees form the United States (Master’s degree or higher).

If the cap is reached in the first five working days, USCIS will first hold the random selection process for those holding advanced degrees from the U.S. After this quota is reached, those applicants not chosen will be placed in the standard H-1B lottery pool.

Extensions For Those Whose OPT Expires Before Oct. 1, 2009

If your case is accepted under the quota:

  • Work authorization will be extended if you will still be in OPT status after April 1 and you have filed for a change of status to H-1B.
  • If your post-completion OPT has expired before April 1, but you will still be in your grace period by April 1, your will receive an extension to stay in the United States until your Oct. 1, 2009 H-1B start date, but you will not be able to work prior to the H-1B start date. In other words, work authorization will not be reinstated retroactively.

Cap Exempt

Applications for employees who will work at the following are not subject to the cap:

  • Institutions of higher education
  • Nonprofit organizations or entities related to or affiliated with institutions of higher education
  • Nonprofit research organizations or governmental research organizations.

 In addition, individuals previously counted against the cap, such as most of those already in H-1B status (those working for the organizations named above were not counted against the cap, so if you are planning on changing employers, you should talk to a competent attorney immediately to determine whether you will be subject to the cap now).

H-1B Restrictions for Stimulus Funds (TARP) Recipients

Under the American Recovery and Reinvestment Act of 2009, companies that receive funding under title I of the Emergency Economic Stabilization Act of 2008 (aka “TARP fund recipients”),  or under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies), face additional restrictions on filing H-1B petitions.

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