H-1B & Form I-9 Deadlines Fast Approaching

USCIS Extends H-1B Filing Deadline to April 7

Employers are reminded that, beginning April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2009.

For fiscal year 2008 (FY08), the 65,000 H-1B cap was met on April 2, the first date of filing, and petitions were selected for adjudication based on a random lottery process. For FY09, USCIS extended the filing deadline through April 7, 2008, and all petitions received from April 1 through April 7 were subject to the random lottery process. Although it is expected that less H-1B petitions will be filed for FY10 than in the past several years, USCIS has announced that it will again extend the H-1B filing deadline through April 7, 2009, and all petitions received from April 1 through April 7, 2009, will be selected for adjudication based on a random lottery process. If the H-1B Cap is not reached by April 7, 2009, USCIS will continue to accept H-1B petitions until the visa quota is met. USCIS will then conduct the lottery for those cases received on the last day. Any petitions not selected during the lottery process will be returned, along with the appropriate filing fees.

We encourage employers to carefully consider their hiring needs for the coming year. Once the H-1B cap is reached, employers will not be able to obtain new H-1Bs until October 1, 2010. If you are considering the hiring of a foreign worker who will need H-1B sponsorship, please contact any of our immigration attorneys immediately to review your hiring plans. It is important to remember that the cap applies only to new H-1B cases, and not to extensions of H-1B status or a transfer of an H-1B visa from one employer to another. The cap does, however, affect those foreign nationals who are in H-1B status seeking to work for new employers, but who are currently exempt from the cap, based on employment with a university or not-for-profit or governmental research organization.

New Form I-9 Required April 3

Employers are reminded that they will be required to use a new version of Form I-9 beginning April 3, 2009, to verify the identity and work authorization of their newly hired employees. The latest version of the form can be found at www.uscis.gov/i-9 and contains a revision date of REV. 02/02/09 in the bottom right-hand corner. Employers may incur fines and penalties for failing to use the revised Form I-9 on or after this date. Until April 3, employers must continue to use the REV. 06/05/07 edition, which can also be found on the USCIS website.

As we reported previously, there are several changes to the new form, including new verification guidelines and a redefined list of acceptable proof of identification documents. Among its most notable changes, the new form:

Makes citizen and non-citizen nationals of the U.S. two separate categories in Section 1. Non-citizen nationals of the U.S. include persons born in American Samoa, some former citizens of the former Trust Territory of the Pacific Islands, and some children of non-citizen nationals born abroad. More information about non-citizen nationals can be found on the Department of State website at travel.state.gov.
Eliminates certain acceptable documents. Temporary Resident Cards and older versions of the Employment Authorization Document (Forms I-688, I-688A, and I-688B) will no longer be acceptable "List A" documents, as these documents have expired and are no longer issued. Also, expired documents, including expired driver's licenses and U.S. passports, can no longer be presented.
Adds certain "List A"-acceptable documents. The U.S. Passport Card and a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa have been added.

In addition to the new Form I-9, USCIS has recently published a revised "Handbook for Employers, Instructions for Completing Form I-9," which can also be found at www.uscis.gov/i-9.

We continue to monitor the status of employment eligibility verification requirements and will update you with the latest developments. In the meantime, please feel free to contact any of our immigration attorneys with questions you might have regarding the new Form I-9 or about the I-9 process in general.