H-1B Visa – Nonimmigrant “Specialty Occupation” Visa

The H-1B nonimmigrant visa is widely utilized by U.S. employers seeking to hire foreign persons to fill positions requiring the services of a professional.

An initial H-1B petition may be approved for a three-year period and renewed for an additional three years.

H-1B Requirements

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 for the employment, whichever is higher.

H-1B classification may be granted to an alien whose prospective employer successfully demonstrates that the alien:

    1. 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; and
    2. 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

USCIS now uses a computer-generated random selection process to determine which petitions subject to the numerical cap will proceed to adjudication. The total number of persons 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. A special exemption exists for beneficiaries who have earned a master’s or higher degree from a U.S. institution. This exemption, however, is limited to 20,000 H-1B beneficiaries annually.

Under free-trade agreements with Chile and Singapore, additional numbers are reserved to citizens of those countries.

Australian citizens who would otherwise be qualified 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.