A Memo issued by the USCIS beginning this year has been the underlying cause. The agency Memo requires that h1b petitions show presence of employer and employee relationship and details several factors indicating such relationship. In addition to the traditionally accepted standards such as abilities to pay, hire and fire, it includes exercise of control and suprvision by the employer over the job performed as the necessary indicia of employer and employee relationship.

Factors indicating presence of employer and employee relationships are well established in the subsatntive law and same policies have been followed by USCIS in adjudicating visa petitions. The government memo attempts to borrow these same concepts is a compilation of its poilicies followed so far. However, there has been wide opposition to the memo which is called as untra vires because its issuance did not follow the requisite government procedure detailed in the Administrative Procedure Act. However, even if unltravires, until withdrawn we are required to follow the Memo and its mandate and prove as required, the presence of employer-employee relationship for a successful H1b petition.

The annual quota of 65,000 H1Bs may be reduced by upto 6,800 which is set aside for the H1B1 visa for nationals of Chile and Singapore and the remaining is then available for the general h1b applications. ince not all the 6,800 numbers of the H1B1 visa is utilized every year, the unused H1B1 from the previous fiscal year are added back to the annual h1b cap number. Additionally, 20,000 H1b applications are approved for advanced degree holders which are considered exempt from the annual cap/quota. Once the required number of advanced degree applications are received these applications would continue to be accepted until the general h1b ceiling limit is reached. As the advanced degree h1b quota is no longer available for fiscal year 2010 all further h1b applications regular as well as advanced degree h1b applications would now be accepted against the general h1b ceiling limit which appears to be fast approaching.