H-1B Visa for Workers in a Specialty Occupation

The H-1B Visa is a temporary non-immigrant visa that is available for foreign workers with specialty occupations who, along with their petitioning employers, meet certain requirements. A specialty occupation typically requires a bachelor degree or higher or the equivalent of such degree based on experience.

Important notes/dates for the H-1B visa:

 - An H-1B visa number must be available at the time of filling the petition, unless the petition is exempt from numerical limits.

- The H-1B visa has an annual numerical limit of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. masters degree or higher are exempt from the cap.

 H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap.

- The U.S. government ‘s fiscal year starts on Oct.1. H-1B and petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

To qualify for an H-1B Visa, the employer and beneficiary generally must demonstrate:

 - The petitioning employer has control over the beneficiary employee’s work;

- The beneficiary employee possesses either a bachelor degree, higher degree or equivalent;

- The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor degree in a field related to the position;

- The employer normally requires a degree or its equivalent for the position; or the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree; 

- The position is a specialty occupation related to the beneficiary’s field of study; and

The beneficiary will be paid the higher of the actual and the prevailing wage for the position.

Please contact The Law Office of Erin Elliott for detailed information on the H-1B visa application and process.

Posted by Erin Elliott