Time to plan for the H-1B visa filing deadline
March 16, 2009 by Norman C. Plotkin
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U.S. cleantech companies need a plan for this year's H-1B visa lottery and quotas before March 31, warns immigration law firm Jackson & Hertogs.
Clean technology companies in the U.S. may find themselves in the unusual position of receiving federal stimulus funding while at the same time not being able to hire and retain key employees.

The economic downturn has stopped many employers across all industries from making new hires, but cleantech companies are gearing up for even greater hiring to meet the challenges of our changing economy.

However, many of the best potential hires will be foreign nationals who require employment authorization issued by U.S. Citizenship & Immigration Services (USCIS) to legally work in the U.S. Many times the most appropriate visa for these workers is the H-1B visa. The H-1B nonimmigrant visa is for highly skilled workers and is one of the few visas available to foreign scientists and engineers to work for U.S. companies.

The predicament is that H-1B visas are not always available. Strict annual quotas have meant that many more H-1B visas have been requested in each of the last few years than available numbers.

What this means for cleantech companies is that they in particular may be barred from hiring key personnel because of strict reductions in visa numbers. Since most cleantech companies are startups, they may not be prepared to deal with this hiring issue because they do not have the infrastructure in human resources to make them aware of the restrictions. For individuals who have not already been counted against the annual H-1B cap, there is only a short window in which to file H-1B visa petitions: between April 1 and 7, 2009.

Given the relative youth of cleantech, cleantech companies are particularly vulnerable to being shut out by the H-1B cap. How many F-1 students (recent Masters and PhD candidates) has your company hired in the past year? If you even have one, you should be looking at a long term solution to keeping the F-1 student on board. What are your hiring needs going into the balance of the calendar year?

Annual limits for H-1B visas

There is a limit of 65,000 H-1B visas available each fiscal year for first-time H-1B status holders. Some visas from this category are reserved for H-1B1 visas for citizens of Chile and Singapore. There are 20,000 additional visas made available for individuals who hold advanced degrees from U.S. universities. Both sets of visas are typically oversubscribed and subjected to a lottery by the USCIS.

The government’s fiscal year runs from Oct. 1 to Sept. 30, and H-1B visa petitions may be filed no earlier than six months before the proposed employment would commence. That means that for FY 2010 cap subject H-1B nonimmigrant visa petitions, the earliest start date on the petition would be Oct. 1, 2009, and the earliest date on which USCIS would accept H-1B visa petitions is April 1, 2009.

Because of the volume of petitions filed each year, the USCIS has implemented a system where they will accept H-1B filings for, at minimum, the first 5 business days of April. If a sufficient number of petitions are received during that filing window, then no more visa petitions will be accepted. If more petitions are received during that filing window than the number of available visas, then the received petitions will be subjected to a random lottery. There is no way to increase the odds of selection under the lottery; duplicate filings are barred and will result in both petitions being denied without filing fees being returned.

What happened last year?

Last year’s FY 2009 filing season (April 200 saw an unprecedented number of applications—approximately 163,000—during the five day filing period from April 1 to 7, 2008, for regular cap H-1B visas. There were only 58,200 available after the allocation citizens of Singapore and Chile. For the 20,000 “advanced degreeâ€