H-1B Visa

The H1-B visa (Professional in a Specialty Occupation) allows a U.S. employer to fill a position requiring the minimum of a baccalaureate in the particular field with a qualified foreign worker.  He or she must possess a U.S. bachelor’s degree or an accredited foreign equivalent.  

The H1-B visa is for foreign workers who will hold specialty occupations.  A specialty occupation is one which “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States.”  The employer must demonstrate a need for someone in a specialty occupation as the minimum capacity to perform his or her job duties. 

Under the regulations, the need for a person in a specialty occupation can be shown by one of the following:

1. A bachelor's or higher degree is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires the degree for the position; or
4. The nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.

As of this writing, Congress has set a limit of 65,000 for H-1B most workers.  Those who work for universities, government and non-profit research organizations are not subject to the H-1B cap.   Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap.   

Most H-1B visa petitions are initially approved for three years, with an extension up to additional three years.  After that time the foreign worker must remain outside the United States for one year before another H-1B petition can be approved.  Certain H-1B visa holders may obtain an extension of his or her H-1B status beyond the 6-year maximum period, when:

1.  365 days or more have passed since the filing of any labor certification application that is required by the foreign worker to obtain status as an EB immigrant; or
2.  365 days or more have passed since the filing of an EB immigrant petition. 

Since H-1B visa holders are presumed by law to have dual intent, they may seek to petition for an immigrant visa through employment-based immigration process while in his or her H-1B status. 

Here is what we can do for you:

• Keep you and your employer informed on the requirements and strategy of petitioning for a H-1B visa;
• Check out the prevailing wage requirement for your particular job position;
• Prepare all forms and draft petition letter in support of your H-1B visa petition;
• File the Labor Condition Application with the Department of Labor;
• Have your employer sign at designated places;
• Mail your H-1B visa petition package to USCIS and let you know once we receive the Receipt Notice;
• Mail you the original H-1B Approval Notice once approved;
• Keep you informed in the event of H-1B visa extension and/or change of employment.