There are Only 58,200 Regular H-1B Visas: Do Not Delay – It’s Now Time to Strategize for the H-1B Season.

The current annual cap on the H-1B category is 65,000. All H-1B nonimmigrants are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program specifically designed for the citizens of Chile and Singapore. Unused numbers in H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1Bs visas are granted each year except 20,000 additional H-1B visas which are restricted to individuals who have received master’s degrees or higher from U.S colleges or universities.

U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions. Given that, in FY 2014, the H-1B cap was met by the first week of the filing period, it is imperative that employers file all new quota-subject H-1B petitions on March 31, 2014. Employers should immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA). Thus, strategically strategizing the filing of H-1B Petition is a key to hiring an H-1B employee for the financial year beginning on October 1, 2014.

The H-1B Employer Must Exercise Sufficient Level of “Control” Over the Prospective H-1B Employee.

In order for the H-1B petition to be approved by United States Citizenship and Immigration Services (USCIS), Department of Homeland’s agency responsible for adjudication of H-1B petitions, petitioning employer must establish that employer-employee relationship exists and will continue to exist with the employee throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of “control” over the prospective H-1B employee.

Thus, the prospective H-1B petitioner organization must be able to establish that it has the “right to control” when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job and USCIS considers various factors in making such a determination (with no one of the following factors being decisive with regard to the issue of “control”).

Both the Proffered Position and Prospective H-1B Employee Must Qualify for the H-1B.

Not only the prospective employee but both the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for H-1B visa, it must be a “specialty occupation”. “Specialty occupation” is an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B regulations further requires that a position also meet one of the following criteria, in order to qualify as a specialty occupation: 1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry in