Immigration Law Advisory - H-1B Cap Season Draws Near and Revisions to Form I-9

The H-1B cap season is fast approaching.  For fiscal year 2009, US Citizenship and Immigration Services (USCIS) will begin accepting cap subject H-1B petitions on Tuesday, April 1, 2008.  This is the earliest date for which an employer may file a petition requesting H-1B employment with a start date of October 1, 2008.  USCIS anticipates that April 1, 2008 will see a repeat of the mass filings from last year, when the annual H-1B cap was reached within the first two days after the initial filing date and accepted petitions were selected randomly using a lottery system.  Petitions received on or after April 4, 2007 were rejected.

H-1B Generally

US businesses utilize the H-1B program to employ foreign workers in “specialty occupations”. A “specialty occupation” is an occupation that requires a bachelor’s degree or equivalent for the application of theoretical and highly specialized knowledge.  H-1B employment is temporary in nature and may be granted for an initial period of three years.  As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require US employers to meet specific labor conditions to ensure that American workers are not adversely impacted. 

Cap-Exempt Petitions

There are also 20,000 H-1B visas reserved for aliens with US-earned masters’ or higher degrees.  Additionally, those petitions exempted from the regular H-1B cap include petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow most current H-1B workers to work concurrently in a second H-1B position.
• Allow academic or non-profit research organizations to petition for H-1B workers.

In conclusion, employers who plan to hire talented and skilled foreign workers should plan ahead so that H-1B visa petitions can be prepared and filed for April 1, 2008 receipt by USCIS to increase their chances of approval before the fiscal year 2009 cap is reached.  Since cap subject H-1B visa petitions can be filed no more than six months prior to the date the employee will begin working for the petitioner, we strongly encourage employers to assess their staffing needs for the upcoming year now to prepare for the upcoming filing season.

Revised Form I-9

As of December 26, 2007, US Citizenship and Immigration Services (USCIS) requires the use of the revised Form I-9 (version dated 06/05/2007).  All employers are required to complete Form I-9 for all employees working in the United States, in order to verify the employee’s identity and work eligibility.  I-9 Verification must be performed for all employees ( US citizens and noncitizens), including new hires, current employees (reverification, where necessary), and acquired employees (mergers, acquisitions, and reorganizations). 

Key to the form’s revision is the elimination of five (5) documents from List A of the List of Acceptable Documents for proof of both identity and employment eligibility.  The five documents eliminated from List A are:

• Certificate of US Citizenship
• Certificate of US Naturalization
• Alien Registration Receipt Card (Form I-151)
• Unexpired Reentry Permit (Form I-327)
• Unexpired Refugee Travel Document (Form I-571)

These documents were removed because they were vulnerable to counterfeiting, tampering, and fraud.  In lieu thereof, USCIS has designated the following documents as currently acceptable List A documents:

• NEW: Employment Authorization Document (Form I-766);
• US Passport (unexpired or expired);
• Unexpired Permanent Resident Card or Alien Registration Receipt Card (Form I-551);
• Unexpired foreign passport with temporary I-551 stamp;
• Unexpired Employment Authorization Document with a photograph; and
• Unexpired foreign passport with an unexpired Arrival-Departure Record (form I-94) (for nonimmigrants authorized to work for a specific employer).

Additional changes to Form I-9 include:

• All employment authorization documents with photographs in circulation are now included as one item on List A (I-688, I-688A, I-688B, I-766).
• Employee is not obliged to provide Social Security Number in Section 1 of I-9 unless employed by an E-verify employer.
• Additional information about electronically signing and retaining I-9 forms.
• Improvements in format, font, organization, and grammar of text to make Form I-9 more readable and user-friendly.

After December 26, 2007, employers who use outdated versions of Form I-9 will be subject to fines and penalties.  Employers must use the new Form I-9 only for new hires. They do not need to complete new forms for existing employees unless these employees require reverification.

If you have questions about the H-1B cap for fiscal year 2009 or the new Form I-9 requirements, please contact Lynda S. Zengerle at 202.429.8170 or Aleta Turner Okediji at 202.862.5733.