The H-1B nonimmigrant visa category, which is by far the most sought-after work visa category, allows U.S. employers to hire foreign workers in "Specialty Occupations." To qualify for an H-1B, an H-1B worker must have a relevant bachelor's degree or equivalent, and his/her H-1B position must be a professional one requiring a bachelor's or higher degree.

The Issue

Congress has set the number of available H-1B's at 65,000 per fiscal year (1,400 visas for nationals of Chile and 5,400 for nationals of Singapore are initially set aside). As of May, 2005, an additional 20,000 H-1B visa numbers per year have been created specifically for foreign workers with a US masters or higher degree. This numerical limitation is commonly called a "cap." Certain H-1B employers and individuals are exempt from this annual cap, however. These include colleges/universities, affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. Cap-exempt individuals include certain foreign physicians in J-1 status and those who have had H-1B petition approvals within the last 6 years.

Why the Rush?

The governmental Fiscal Year begins on October 1, and new 65,000 + 20,000 H-1B visas become effective on October 1 each year. However, due to the high demand for H-1B visa numbers, the United States Citizenship and Immigration Services (USCIS) now accepts employers' H-1B applications starting April 1 of each year. Last April, the USCIS received approximately 130,000 H-1B applications for the 65,000 slots on the first date of the Fiscal Year 2008 application window period. In other words, all of 65,000 H-1B visa numbers (except for those reserved for nationals of Singapore and Chile) disappeared on DAY ONE of the application period. Worse yet, only 50% of such applications were eventually selected for adjudication by the computer-generated lottery system. Applicants with a US masters degree faired slightly better, having an additional one month before their cap was reached on April 30.

It is expected that this year the H-1B competition may be as fierce as, if not worse than, the last year.

Employer Action

If you are a US employer wishing to employ an eligible foreign professional worker in the H-1B visa category, and if it is not a cap exempt organization, it is essential that an H-1B petition be filed with the USCIS on April 1, and no later than April 1. (Otherwise, the next chance to submit an H-1B petition for the individual may not be until April 1, 2009 for H-1B employment starting October 1, 2009.)