H-1B Quota for 2014
Update: H-1B Quota for 2014
Early Exhaustion of the 2014 H-1B Quota is Likely
The 2014 fiscal year H-1B quota filing date is fast-approaching, and unlike in past years, the moderately-improved economic conditions are expected to result in a greater volume of H-1B applications. New filings for applications subject to the cap can be filed on or after April 1st, 2013, with a start date of October 1st or later.
Congress has legislated an annual cap of 65,000 H-1B petitions, with an additional 20,000 petitions available to those with a Masters or other advanced degree from a U.S. educational institution. Several thousand of the 65,000 cap-subject petitions are reserved for nationals of Chile and Singapore under special treaties with those countries.
Those who qualify for the U.S. Masters Cap get two shots at an H-1B petition, as they are first placed into the pool for such petitions. Where demand for this category is higher than the available slots and a lottery is run, applicants who are not selected are placed into the larger general pool.
Many employees needing H-1B sponsorship will be exempt from the quota. They include:
1) Employees who have held H-1B status in the past 6 years, including applications for an extension of status, a change of an H-1B employer under AC21, and a request for a concurrent H-1B employer; OR
2) Individuals sponsored for H-1B status by an exempt employer, including an institution of higher education or a related or affiliated nonprofit organization; a nonprofit research organization, and a government research organization.
The anticipated unavailability of H-1B petitions later in the fiscal year makes it essential that employers prepare early. A prevailing wage request and the certification of a LCA, especially in cases with any degree of marginality, require careful preparation.
The best candidates for H-1B status are generally individuals currently in F-1 status in the United States, or others in TN or J-1 status who are initiating their “green card” process and therefore need to switch to H-1B status.
The Requirements for the H-1B Visa:
H-1B visas are available to individuals who will fill “specialty occupations” and require sponsorship by a U.S. employer. Sponsorship of workers for H-1B status commits the employer to payment of the “prevailing wage” to the worker for the duration of his or her H-1B status. The fees and costs associated with H-1B status cannot be deducted from the employee’s salary or otherwise assessed against the employee. H-1B status can be accorded to an employee for a maximum of 3 years at any given time, and no employee can hold H-1B status for more than 6 years continuously unless they are beneficiaries of special exceptions set out in the American Competitiveness in the Twenty-First Century Act (“AC21”).
Treatment of small businesses:
USCIS has received withering criticism in the past for its restrictive adjudications of H-1B applications filed by start-up companies and small businesses. The discovery through federal litigation that USCIS’s internal fraud indicators targeted small businesses was of particular concern, and was completely at odds with the Administration and USCIS’s stated goals over the last 4 years of using immigration to promote our economy.
Nevertheless, memoranda released last year suggested that small businesses could indeed file H-1B applications and that a business in which an employee held at least a partial ownership share could also sponsor the employee on an H-1B application. These memos are important and have led to some improvements to Service policy. While small businesses have to more carefully document their existence, their ability to pay a wage to the employee, and otherwise overcome fraud indicators, a well-prepared application for an H-1B filed by a small business is approvable.