The audio for this podcast can be downloaded at

http://www.immigrationfridays.com/podcasts/03302007.mp3    

00:02 Announcer: Welcome to Immigration Fridays, your source of up-to-date immigration information brought to you every Friday, from Miami, Florida by the Immigration Law Offices of David J. Hart, P.A.

00:24 Announcer: Today is March 30, 2007 and this week's topic, H1-B Deadline and Issues. Here is David Hart.

00:32 David Hart: Welcome back everyone to Immigration Fridays. Today is March 30, 2007. My name is David Hart. I’m an immigration attorney as you probably know. And I’m your host of this podcast known as Immigration Fridays. Today, I’m with Associate Attorney Jordana Hart. Jordana, how are you?

Jordana Hart: Hi. How are you?

David Hart: Great. You are joining us by telephone from Boston, right?

Jordana Hart: Yes I am.

David Hart: What is the weather like up there?

Jordana Hart: Cold.

David Hart: Still.

Jordana Hart: Yes, honey, but cold still.

01:01 David Hart: Ok. For most of our listeners to the podcast, I usually participate with Andrea. Andrea is right now working on getting our H1 filings and that is pretty much going to be the topic for today’s brief podcast because we all have commitments to get back to in terms of getting our cases out. Jordana, can you give our listeners a brief idea of what the main H1 issues are in terms of the quota and the filing issues let us say.

01:45 Jordana Hart: Sure. Well as some of the listeners might know, the H1-B is one of the most popular visas. It is a specialty occupation visa for a professional holding at least a bachelor’s degree and being sponsored for a job. They require at least a bachelor’s degree in the field. The largest issue which has even been in the news and has been talked about by Bill Gates and others is the fact that there are only 65,000 of them available for bachelor’s degree holders and then 20,000 sort of specifically set aside for holders of the US master’s degree.

02:19 David Hart: Well, hold on a second. The 20,000 for US master’s degree is not included in the cap.

Jordana Hart: It is not. It is separate.

David Hart: Right. And what is included and deducted is the Free Trade visas for Chile and Singapore so that is 58,200.

02:34 Jordana Hart: Yes. So that is one issue that there are very few of them. The 65,000 is not enough to go around for employers who need them, that is number 1. Number 2, because of what is called the cap, there is also very stringent filing deadlines. As you mentioned David, a lot of attorneys are today preparing and scrambling to file their H1-Bs to actually send them out by FedEx tomorrow to arrive Monday at the various service centers for processing as of April 2^nd.

David Hart: They would all go to Vermont.

03:07 Jordana Hart: Essentially, the issue is that they we are scrambling to get them in and to try and beat that cap. If the cap is not beaten, then we lose the ability or the employer loses the ability to have that new H1 for October 1, 2007, which is the start date for those H1-Bs. There is a little less pressure on the master’s degree holders obviously but still rumor has it both caps will be met very quickly.

03:44 David Hart: Right. So here is the issue. The first of October which is the first day is Sunday. And obviously they are not open on Sunday but the reason we are going to file Friday night, not Saturday, is that it gets there on Saturday, or they will attempt delivery but if not then…

Jordana Hart: They will be picked up on Monday morning, and that date will be Monday that they will look at.

04:16 David Hart: Ok. And why would we do that, in other words, why not just file them on Monday so they get there Tuesday. I mean one extra day, what is the difference.

04:24 Jordana Hart: Well, this is the situation. Some attorneys begin by saying they would send them out Monday instead of Tuesday. One of the big concerns is what is called the labor condition application, an LCA. This is essentially statements by the employer that there are no strikes and that they are going to be paying the employees the way they would pay a similar US worker -  the H1-B employee.

David Hart: At the prevailing wage or more.

04:48 Jordana Hart: Exactly, the prevailing wage. So the issue with this document is that it certifies a period of employment of 3 years and it cannot be filed prior to 6 months before that day. And so what we were originally going to do is file them, certify these on Monday the first, they would go to October 1, that is 6 months before. There has been a little bit of hysteria and rumors that the cap is going to be met on Monday or Tuesday and so attorneys are now scrambling more than they would prior to these rumors to get them out today and certify them today and yesterday and even as early as the 15^th. What it means is the employees can start to work on October 1 but the LCA will only go 3 years down and it will end let us say mid-September 2010, which I don’t think is a high price to pay instead of few days knocked off the end because a lot of people will be getting extensions anyway.

05:50 David Hart: Right. In other words, today Friday the 30^th, we file LCAs with validity dates of March 30 valid for 3 years which would take it…

06:12 Jordana Hart: No. That was validity periods of September 30, 2007, which takes you then to September 29, 2010, and it is important to track that final date because after that date, the prevailing wage is no longer certified.

06:28 David Hart: Right. And I guess everyone has to do that because the website to file the LCA will not permit you to put a date. In other words, to put a date in the program, it will not permit us to let us say on preparing it or submitting it even a day more or two days more than 6 months.

06:52 Jordana Hart: Correct. And the important for listeners to know is this is done online. It is certified online and so it is very stringent and <unintelligible>that the program itself will not allow us to do anything earlier than those 6 months.

07:06 David Hart: Ok. So basically we believe especially you said rumors, but I think it is a little more than rumors and there is a distinct possibility that the cap could be reached by Tuesday let us say or even Monday, which is Monday the 2^nd or Tuesday the 3^rd. Last year, I think most of us will recall that the cap was reached when the quota opened on April 1, 2006. I believe it was May 24, so it is just under two months.

Jordana Hart: Exactly. And the master’s cap was met in July but there is a sense that this is going to go much more quickly this time.

07:48 David Hart: And so essentially, and I’m hoping that most of, if there are any of our listeners who are new H1 applicants because the cap or the quota doesn’t apply to extensions or change of employers. So there is really no issue.

Jordana Hart: And also David, it doesn’t apply to the university employers and research facilities associated with a university.

08:17 David Hart: Right. And so there are some exemptions. But we are talking here of standard new employment H1 which is subject to the cap which is 58,200. It is going to go very quickly. And the only positive thing that I can say and hopefully we know we are getting all our cases in and we have been preparing for the last weeks and we even had some that we just had to scramble to prepare in the last few days. But the positive thing if you consider to be positive is and we will know, I think we will probably know by next week what the issue is and we will post as soon as we know by the way, we will post on the website, www.immigrateusa.com, we will post whatever information we get about when CIS, Citizenship and Immigration Services, advises us that the cap, looks like the cap is going to be reached. I suspect by Wednesday or Thursday, we will have some indication and we will convey that to you by posting on the website immediately.

09:24 Jordana Hart: I just want to add one other quick thing David is that most were advising clients to file them under premium processing which is an expedited service.

David Hart: Yes. For 15 days by paying $1000 filing fee.

09:36 Jordana Hart: Correct. And I think it is important for listeners who are looking at this to really consider that because there is almost no chance of getting one, we believe, unless it is filed in that fashion.

09:48 David Hart: My position on that is that with premium processing, they are going to look at it immediately. I don’t believe though and we need to check on this, I don’t believe that if you don’t, they are basically almost in first come first serve. If a non-premium case comes in and it is allocated a space, I believe they will respect that space, in other words, no one has said if you don’t pay the $1000, because clearly there is going to be easily more than 58,000. I mean I’m, assuming there will be more than 58,000 who are going premium but I don’t believe that you have to pay premium. If you file today or Saturday tomorrow, so that it gets there on Monday and that you are in that first batch of cases Monday morning let us say and you are non-premium, I still believe that you are in line.

10:49 Jordana Hart: Ok. I’m not sure. I just feel that a premium case would get a different kind of attention but I’m not positive and you might be perfectly right about that.

11:01 David Hart: But even with that said, if I’m right, I still agree with you that it should be done as premium because otherwise, you may fall between the cracks and who knows.

Jordana Hart: And also if a request for evidence is issued, that adds time and it is better to be handled it in an expedited way.

11:17 David Hart: Right. And what I was going to say about this issue of reaching the cap so quickly, I believe that if it is really reached on Monday or Tuesday, I think those of us who are in favor of obviously immigration reform that at least and I don’t say that to obviously accept that. We will not have anything else but obviously we definitely need the H1 quota to be increased under the STRIVE Act. I believe they are asking for numbers equal to 115,000 plus an additional amount if in the future years we exceed the 115,000 during the fiscal year. I believe they can go beyond or around the cap to 180,000. That was in the STRIVE Act. But I think if it does happen, we will certainly be able to say something like we have employers now who will not be able to employ the talented people that they want to employ until October of 2008 unless we have that kind of relief and hopefully everything else. In any event, these are some of the issues that we are dealing with right now, which we thought you would be interested in. We are always interested as well to hear from you if you can send me an email with your H1 issues, quota issues, problems, and obviously we would like to look at them and hopefully we can help you or we even have you on a future podcast. Our email as you probably know is This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . Jordana, thank you for participating today and good luck with the rest of your H filings and we will talk to you soon.

Jordana Hart: Ok. Thank you. Thanks David.

David Hart: Thanks so much everyone and we will be back next week with another edition of Immigration Fridays. Good day.

Jordana Hart: Bye bye.

13:31 Announcer: I would like to provide you with our contact information so that you can send in your questions, stories and situations. We will try to answer your questions and maybe even interview you on a future program.  You can leave a message at 305-577-9977.  From overseas, the code for the U.S. is 01 or toll free in the US and Canada at 1-800-344-4278. Leave a message for Immigration Fridays or email us at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . You can also find us at www.immigrateusa.com.