H-1B Visas

H1-B visas are for persons in a specialty occupation, that requires at least a bachelor’s degree. The applicant employee does not need to maintain a foreign residence and may have “dual intent’, meaning that he or she may also intend to remain in the U.S. permanently. The petitioning employer is required to obtain a certification from the Department of Labor that it has filed a Labor Condition Application.

H1-B Cap

There is a limit to the number of H1-B visas available each year. The H1-B visa year starts October 1 and the earliest date to apply each year is April 1. It is advisable to plan to file an H1-B petition as quickly as possible in the H1-B visa year as once the H1-B visa cap is reached no more H1-B visas will be issued until the following H1-B visa year commencing October 1.

H1-B Length of Stay

Initial stay for H1-B professional is three years; extension of stay in increments of up to 3 years. Total stay limited to 6 years. This may be extended for longer periods for persons who have Labor Certification or immigration petitions pending or are waiting for a permanent visa number.

An H1-B classification may be granted to an alien 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.

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.

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.