H-1B Visa – Nonimmigrant Specialty Occupation Visa
The H-1B nonimmigrant visa is widely used by U.S. employers seeking to hire foreign people to fill positions requiring the services of a foreign worker who will be employed temporarily in a “specialty occupation.”
An initial H-1B petition may be approved for three years and renewed for an additional three years. Extensions beyond six years are available to some H-1B nonimmigrants who are immigrating to the United States via employer sponsorship.
For over 35 years, the immigration experts at the Law Offices of Robert P. Gaffney have provided exceptional service for clients across the nation and around the globe. Contact our offices in California at 415-503-9653. Our employer sponsorship lawyers are ready to help you.
Before filing a petition for H-1B classification in a specialty occupation, a petitioning employer must file a Labor Condition Application with the U.S. Department of Labor, attesting that it will pay the H-1B nonimmigrant a wage no lower than the actual wage paid to all other individuals at the employer’s job site with similar experience and qualifications for the specific employment in question or the prevailing wage for the occupation in the area, whichever is higher.
H-1B classification may be granted to an alien whose prospective employer successfully demonstrates that the alien:
- Will perform services in a “specialty occupation,” that is, a job that requires the attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement
- Is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation
H-1B Numerical Cap Limitation
U.S. Citizenship and Immigration Services (USCIS) now uses a computer-generated random selection process to determine which petitions subject to the numerical cap will proceed to adjudication. The number of people classifiable as H-1B during a fiscal year has been capped at 65,000.
Excluded from the numerical cap are H-1B beneficiaries coming to work for institutions of higher education, nonprofit research organizations and government research organizations, as well as those involved in Department of Defense research and development projects. Beneficiaries who have earned a master’s or higher degree from a U.S. institution are exempt. This exemption, however, is limited to 20,000 H-1B beneficiaries annually.
Under free trade agreements with Chile and Singapore, additional numbers are reserved for citizens of those countries.
Australian citizens who would otherwise qualify for H-1B classification may seek E-3 visa status. The E-3 visa is free of the H-1B numerical limitation, but is instead subject to a separate annual cap of 10,500. The applicant must demonstrate that a Labor Condition Application has been filed with the U.S. Department of Labor, subjecting the E-3 employer to wage and working-condition requirements similar to H-1B classification.