The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as physical sciences, engineering, information technology, medicine, social sciences, business administration, accounting, etc. You may be eligible for an H-1B visa to work for the business or an organization in the United States if the occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists or mathematicians, researcher, etc.), and you have at least a bachelor’s degree or equivalent (based on education and/or experience) in a field related to the position.
Initial period of stay in the United States: Up to 3 years. Extensions are possible in up to 3 year increments. Maximum period of stay generally 6 years (extensions beyond 6 years may be possible).
Could an H-1B Visa work for you? Ask yourself the following questions to see if you might qualify:
- Do you have a bachelor’s degree or the equivalent (based on relevant experience)?
- Will you be working in a “specialty occupation?”
- Will you be earning a wage?
If you answered yes to most of the questions above, then you may likely qualify for an H-1B Visa.
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas (5000 out of these are allocated to professionals from Chile and Singapore) each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, 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 Exempt). 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 petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.
U.S. Master’s or higher Cap Eligibility:
A 20,000 petitions are set aside for those with U.S. Master’s or higher from institution of higher education, which means an educational institution in any State that–
- admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of 20 U.S. Code § 1091(d);
- is legally authorized within such State to provide a program of education beyond secondary education;
- provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;
- is a public or other nonprofit institution; and
- is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time. [not recommended to rely on “in process or pre-accreditation”).
[Check the profile of your university at NCES Data Portal by The Institute of Education Sciences (IES), an arm of the U.S. Department of Education to learn about accreditation status and whether it is a public or nonprofit institution]
For the year 2021, the online registration of H-1B must be done in the month of March 9th to March 25th, 2021 USCIS will only accept those registrations selected in lottery through that online registration system and will indicate filing duration and this duration will of at least 90 days. All cap-subject H-1B petitions filed before April 1, 2021, for the FY 2021 cap will be rejected. Learn more about electronic registration system, here
If you want to learn more about H-1B petition or about our legal services for the preparation and filing H-1B petitions do contact us at (+1) 202 600 7745, or email us at firstname.lastname@example.org, or make an appointment to speak with one of our attorneys Niranjan Adhikari, Serena Li
More information about H-1B Program
H-1B Visa Classification will be granted to those who:
- Will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who 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;
- Based on reciprocity, will perform services of an exceptional nature requiring exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project or a co-production project provided for under a Government-to-Government agreement administered by the Secretary of Defense; or
- Will perform services in the field of fashion modeling and who is of distinguished merit and ability.
What is a Specialty Occupation to qualify for H-1B
Specialty occupation: means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
What are the Criteria for H-1B petitions involving a specialty occupation
(A) Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
(B) Petitioner requirements. The Petition has to be filed a United States employer means which means a person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.
The petitioner shall submit the following with an H-1B petition involving a specialty occupation:
(1) A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,
(2) A statement that it will comply with the terms of the labor condition application for the duration of the alien’s authorized period of stay,
(3) Evidence that the alien qualifies to perform services in the specialty occupation as described in paragraph (h)(4)(iii)(A) of this section.
H-1B Wage Requirement
The H-1B required wage rate will be whichever is greater:
- Offered wage to H-1B worker if no other employee for the position; or
- Actual wage paid to the to all other individuals with similar experience and qualifications for the specific employment in question (DOL ETA Prevailing Wage Determination Policy Guidance_November 2009, provides guide about select right prevailing wage level), the following factors may be considered: Experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors); or
- the prevailing wage (for example listed here, https://flcdatacenter.com/OesWizardStart.aspx).
The wage requirement includes the employer’s obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
To qualify to perform services in a specialty occupation, the Beneficiary must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
(D) Equivalence to completion of a college degree. Equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:
(1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and/or work experience;(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;
(5) A determination by the USCIS that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:
(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;
(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or
(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.
(E) Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term “abroad” refers to the alien’s last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.
License from the U.S. government for a release of Controlled Technologies or Technical Data to foreign persons in the U.S.
The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130) require U.S. persons to seek and receive authorization from the U.S. Government before releasing to foreign persons in the United States controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the United States–even by an employer–is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. Government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, H-1B1, L-1, or O-1A beneficiaries. The U.S. Government requires each company or other entity that files a Form I-129 to certify that to the best of its knowledge at the time of filing it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and determined whether it will require a U.S. Government export license to release controlled technology or technical data to the beneficiary. This process will take at least 30 to 45 days.
If an export license is required, the company or other entity must further certify that it will not release or otherwise provide access to controlled technology or technical data to the beneficiary until it has received the required authorization from the U.S. Government.
The technology and technical data that are, however, controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) and the ITAR’s U.S. Munitions List (USML). Learn more at International Traffic in Arms and the Commerce Control list regulations
If you or your employer want to learn more about this topic or H-1B petition in general or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 202 600 7743, or email us at email@example.com