Work Visas

Specialty Occupation (H-1B)

A specialty occupation is defined as one that requires a minimum of a U.S. bachelor’s degree or equivalent. H1B occupations include jobs in IT industry such as software engineers, computer programmers, systems analysts, network administrators, database administrators, etc.; and other jobs such as accountants, teachers, scientists, engineers, etc.

At the present time, the worldwide annual quota of H1B visas is 65,000. Out of this, 6,800 visas are reserved for persons from Singapore and Chile.

In addition, there is a special quota of 20,000 visas available for holders of master’s or higher degree from US graduate schools. Further, Petitions filed by certain exempt employers are not subject to this quota.

The total period of US stay available on H-1B status is six years. The classification is originally granted for three years, at the end of which period extension is available for a further three years. After spending six years in the US on H1B status, the foreign national must leave the US and remain overseas for one year before he/she can be given another H1B visa to enter the US again. However, if a Labor Certification application or an Employment-based immigrant visa petition filed on behalf of such person has been pending for a period of 365 days or more at the expiry of the sixth year stay, then H1B extensions beyond a period of six years will be granted without the alien having to leave the US for a one-year foreign stay.

A foreign national on H1-B classification may work only according to the conditions of the H1B Petition, and only for the sponsoring employer. However, the foreign national can work for more than one US employer concurrently, full time or part time, if such Petitions are specifically approved by USCIS.

A foreign national in the US on H1B status is eligible to travel overseas during the validity of the H1B stay, and is permitted to pursue Lawful Permanent Residence (“Green Card”) in the US.

Requirements for an H-1B

1. The position which the applying foreign workers is hired for is of specialty occupation;

2. The foreign workers must be paid a prevailing wage or more;

What is a Specialty Occupation?

Specialty Occupation is defined as professional where “it requires theoretical and practical application of a body of highly specializing knowledge.” In simple words, a baccalaureate or higher degree or equivalent is normally the minimum requirement for entry into the particular position. However, the job must always or nearly always require the B.A degree rather than usually requires the degree.

Visa Cap

There is cap of 65,000 H-1B visas per year. The H-1B visas per year are caped at 65,000 per fiscal year less the Free Trade Visas for Chile and Singapore resulting 58,200 H-1B visas. The cap does not include additional 20,000 visas per year for persons who have earned a masters or higher degree from a United States institute of higher education. Also medical doctors who obtain an waiver upon the request of an interested Federal or State agency are cap exempt.

Who can be an H-1B employer?

The H-1B employer should be a US person or entity, i.e., an individual, partnership, corporation, or an organization that qualifies as such an entity. US branches, subsidiaries, etc., of an overseas Company can also file H1B Petitions.

US H1B employers, who meet certain requirements are exempt from the yearly quota cap of 65,000 visas. Generally, the following classes of employers are exempt from such cap:

1. Institutions of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 USC Section 1001(a);

2. Nonprofit organizations or entities related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 USC section 1001(a);

3. Nonprofit research organizations or governmental research organizations as defined in 8 CFR 214.2(h)(19)(iii)(C).

Nonprofit Entity?

An affiliated or related nonprofit entity is “a nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.”

Further, A nonprofit research organization is defined as an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

Change of Employment

H-1B employee can change employment upon filing petition. A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer if s/he was lawfully admitted, the new position is “nonfrivolous”, the new petition was filed before the date of expiration of the period of stay authorized on the I-94.

Services we Provide for an H-1B Applicant

1. Analysis on the applicant’s eligibility for H-1B

We consult with prospective H-1B employee to determine that the nature of the position and the beneficiary’s background are appropriate for the H1B, and suggest alternatives if the initial proposal is not a viable option.

2. Preparation for H-1B legal Documents

We advise both the employer and prospective employee regarding the H1B documentation requirements and legal issues. We can also prepare paperwork and submit it to the Department of Labor and USCIS. If applicable, we can prepare and file applications for dependent family members, as well. For those who require or choose consular processing, we can assist with applying for the H1B and H-4 (dependent) visas at the appropriate consulate abroad if needed.

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