CORONAVIRUS UPDATE FOR COMMERCIAL TENANTS

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Is There An H-1B Visa Deadline?

Technically there is no H-1B Visa deadline. The H-1B Visa petition (Form I-129) may be filed at any time so long as a visa number is available. However, the U.S. Immigration & Nationality Act limits the number of first time H-1B Visas that are available each fiscal year to 65,000. Once this limitation is reached, U.S. Citizenship & Immigration Services (USCIS) will stop accepting H-1B Visa petitions. The fiscal year runs from October 1 to September 30, and USCIS begins accepting H-1B Visa petitions on April 1 of each year.

In 2007, the H-1B visa limit was exceeded in 2 days. Because more than 65,000 applications were received between April 1 and April 3, 2007, the applications were processed pursuant to lottery per agency rules. This kind of demand severely restricts visa availability. Those H-1B applicants that were selected under the lottery were able to begin employment on October 1, 2007 (the start of the fiscal year). Those that weren’t, could only wait to apply again on April 1, 2008, for October 1, 2008, employment. So while April 1st is not in a technical sense a deadline (it is merely the first day USCIS accepts H-1B Visa petitions), most employers, immigrants and immigration attorneys consider it the deadline in which to file the H-1B Visa petition. Otherwise, the employer and prospective alien employee risk coming up against the H-1B Visa limitation, and having their applications returned.

Three dates are important for H-1B candidates and their prospective employers: April 1, the day H-1B Visa petitions are accepted by USCIS; October 1, the start of the fiscal year and the day that employment may begin; and the date (unknown each year) that the H-1B Visa limitation is reached. To maximize an employer’s chance of H-1B Visa approval for employment to begin October 1, employers should file their applications on April 1.

In some circumstances, the H-1B Visa limitation is not reached until much later. For instance, for the 2010 fiscal year, which began October 1, 2010, the H-1B Visa limitation wasn’t reached until late January 2011. This meant that employers could have filed their H-1B Visa petitions for the 2010 fiscal year in November of 2010 and the employee could have began employment as soon as the petition was approved and a visa was issued. Consult a San Diego Immigration Attorney as soon as possible if you are planning to hire a foreign worker.