BREAKING NEWS

22 June 2009

Stimulus-Related Restrictions and FY 2010 Quota H-1B Filing

By Morley J. Nair

The Employ American Workers Act (EAWA), signed recently by President Barack Obama, puts severe restrictions on potential H-1B employers who have received the Troubled Assets Relief Program (TARP) funds. The Act makes such employers "H-1B dependent employers", forcing them to make attestations including efforts to recruit US workers, offering non-discriminating wages to H-1B non-immigrants and US workers, and not causing displacement of US workers.

There is widespread resentment in the H-1B community, both employers and employees, about this issue. We have been asked the question whether such restrictions on recipients of stimulus funds would impact the number of H-1B petitions for the Fiscal Year 2010, the filing for which opens on April 1, 2009. We believe the impact would be minimal for the reason that H-1B workers account for less than one-tenth of one percent of the U.S. workforce including those employed in the banking and financial sectors who are the major beneficiaries of the stimulus package.

H-1B is a non-immigrant visa classification granted by the U.S. Citizenship and Immigration Services (USCIS) to foreign nationals to be employed in the U.S. in "specialty occupations" that require a minimum of bachelor's degree or equivalent. The current worldwide quota of H-1B visas is 65,000 per year. Out of this, 6,800 are reserved for nationals of Singapore and Chile. In addition to this worldwide quota, there is a special quota of 20,000 visas available to holders of advanced degrees from U.S. graduate schools. Further, certain employers in academic and research areas are exempt from this quota. The fiscal year starts on October 1, and petitions can be filed up to six month ahead of the start of employment, so the filing opens on April 1. If enough petitions are received to trigger the 5-business-day filing rule, as happened in 2008, the filing will end on April 7. Otherwise USCIS will continue to accept petitions until the quota is capped.

Last year, 163,000 petitions were filed in the first five days of filing, including 31,200 against the U.S. advanced degree category. As a result, a random lottery was conducted as was done in 2007, to determine the ultimate recipients of the coveted visas.

In the past couple of years, immigration law firms had seen a mad rush leading up to the filing date of April 1. Obviously this year such rush is absent mainly because of the downturn in the economy. So the widespread feeling is that this year there may not be as many petitions filed in the early days of filing as the previous years due to the recession and widespread layoffs. But even if the number of petitions filed is just half of last year's total, the quota would still get capped. Further, as regards the U.S. advanced degree quota cap, there are thousands of foreign students in the US whose petitions were not picked in the lottery last year. A large percentage of them would be candidates again this time, in addition to those graduated later, putting more demand on that category.

Also, we have seen a sudden spurt in new inquiries in the past week or so. Moreover, most of our H-1B employer clients are looking beyond the current economic downturn. They are confident that things would turn around by the time the employment period of the new H-1Bs starts on October 1, 2009. So we keep urging our clients to file the Fiscal Year 2010 quota-subject H-1B petitions on April 1 or as soon thereafter as possible.

Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.

Copyright: The Law Offices of Morley J. Nair, Inc.

Morley J. Nair is the Founder of The Law Offices of Morley J. Nair, located in Philadelphia, PA, practicing Immigration Law in all the 50 states. The firm has processed thousands of H-1Bs and hundreds of Applications for Permanent Residence ("Green Cards"). Attorney Nair can be reached at 215-744-5100. The law firm websites are http://visaworks.com/ and http://h1bplanet.com/

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