John Valdez’s Legal Blog

The time is now for employers to start the process of hiring foreign national graduates.  The traditional visa for hiring new graduates is the H-1B.  This nonimmigrant category is designed to help companies hire well educated foreign nationals with specialized knowledge in areas such as computers, engineering, accounting, teaching, finance, architecture,  math, science, and economics. 

Unfortunately, there are many more applications for these new H-1B visas than there are available visas.  The Cap on new H-1B visas is 65,000, with an additional 20,000 available for those with U.S. Master’s or higher degrees.  The H-1B Cap makes it essential that employers submit their petitions for H-1B status by the first week of April 2009, when the government will begin accepting H-1B petitions.  After that week, H-1B numbers will be exhausted under the Cap, such is the demand for these workers.  After the first week of April, the USCIS will put the submitted applications in a lottery and draw the winners.  Non-winners must apply next year.  Those lucky in the H-1B lottery will be allowed to work beginning on October 1, 2009, the first day of the government’s new fiscal year.

New rules, implemented last year, make it easier for students to go through the H-1B process.  In past years, following graduation, students faced an issue known as the “Cap-Gap.”  A Cap-Gap issue would arise after graduation when the student would apply for H-1B status in April while in student status or while working on a valid one year optional practical training authorization.  An issue would arise if the student’s status or employment authorization was due to expire prior to October 1, the first day a new H-1B holder can work following an approval for a change of status.  In some years, these foreign nationals would need to leave the U.S. before their status expired and return after October 1st.  For many students, this was a major burden.  While the government has sometimes issued an interim regulation that provided some relief for these Cap-Gap students, there was never a guarantee.

 On April 8, 2008, the USCIS finally issued a regulation that provides relief to Cap-Gap students each year.  Under the regulation, Cap-Gap students may stay in the United States legally until their H-1B status goes into effect.  If they have an Employment Authorization Card under Optional Practical Training, these students may also continue to work while waiting for their H-1B status, even if the document expires. 

Employers should be planning right now to process new H-1B petitions for university graduates.  The Smith & Garg PC immigration attorneys are very skilled at preparing H-1B petitions.  We can also analyze the case to see if there is an exception to the H-1B cap that applies.  While there is no assurance that a Cap number will be available to the applicant, there will be no possibility of success unless the employer acts soon.  You can make you appointment or speak to a Smith & Garg PC attorney by dialing 562-590-7300.