What is an H-1B visa?

An H-1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign national workers in a highly specialized field.

What type of job qualifies as an H-1B specialty occupation?

The H-1B specialty occupation must meet the following requirements:

1. Require theoretical and practical application of a body of highly specialized knowledge
2. Require attainment of a bachelor’s or higher degree or its equivalent in the specific specialty; and,
3. Any one, or more, of the following:

• A bachelor’s degree or its equivalent is normally the minimum entry requirement for the position
• The degree requirement is common to the industry or, the position is so complex or unique that the work only can be performed by an individual with a degree
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor or higher degree.

What type of employee qualifies for an H-1B visa?

A foreign national who qualifies for the H-1B visa must meet one of the following requirements:

• Complete a U.S. bachelor’s degree or higher in the degree specified by the job posted
• Hold a foreign degree that is the equivalent of a U.S. bachelor’s degree specified in the job posted
• Hold an official license or certification which authorizes him or her to perform the specific job
• Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of an equivalent degree

How long is an H-1B visa valid?

H-1B immigrants are usually admitted to the U.S. for three years. Their time period may be extended, but generally cannot go beyond a total of six years, with a few exceptions.

What is the earliest date I can apply for an H-1B visa?

The U.S. government starts accepting applications for the beginning of the next fiscal year six months prior to the start of the fiscal year. The government’s fiscal year begins October 1, so the earliest H-1B visa applications are accepted is April 1. Once the government receives the maximum number of applications allowed (the H-1B cap), the H-1B application window will close and no more H-1B applications will be considered.

What is the “H-1B cap”?

The H-1B cap is the annual limit the U.S. government puts on the number of foreign nationals able to enter the country to work through the H-1B visa. The cap is currently at 65,000 H-1B visas per year, which does not include the 20,000 additional visas set aside for individuals who have earned a master’s degree or higher from a U.S. university.

In 2013, the H-1B cap was reached within the first week of receiving applications. As the demand for H-1B visas grows each year, we can anticipate a very similar situation in the years to come unless laws are passed to increase the H-1B cap.

Can my employee qualify for an exemption from the H-1B cap?

In order to qualify for an exemption from the H-1B cap, the employee must either:

• Work for an institution of higher education
• Work for a non-profit research organization
• Work for a government research organization
• Work for a primary or secondary education institution
• Work for a non-profit entity that engages in an established curriculum-related clinical training
• Be filing for the second extension with the same employer
• Be filing to request an amendment to a petition without a request for an extension; or
• Be filing in order to correct a service error.

If an employee is already in the United States on a different visa and their employer applies for H-1B on their behalf, is the applicant still subject to the H-1B cap?

If any employee is applying for an H-1B visa for the first time, they will be subject to the cap no matter their previous U.S. visa designation.

Can an H-1B applicant/employee have multiple H-1B business sponsors?

Yes, current law allows multiple businesses to apply on a single foreign national’s behalf for the H-1B visa.

If I am unable to obtain an H1-B visa for my employee(s), what are some viable H-1B alternatives?

VISANOW-retained attorneys can provide H-1B visa alternatives tailored to each company and each employee’s unique skill set and needs. Here are a few examples of what a potential H-1B candidate might also qualify for:

• B-1 Visa – This is for an employee whose work would be H-1B level in a specialty occupation, paid by an employer outside the U.S., and with a degree that is relevant to the work they would be performing.
• L-1 Visa – If your company has offices outside the U.S. and you are transferring an employee to your U.S. location, this could be an option for you.
• E-3 Visa – If the foreign national is a citizen of Australia, this is a visa that may work for you.
• TN Visa – For Mexican and Canadian citizens, this is a route that you could take to qualify to work in the U.S.
• O-1 Visa – For people of extraordinary talents, abilities, and achievement, the O-1 Visa is a great option.

There are several other options depending on your foreign national employee’s skill set and country of origin. Contact a VISANOW immigration consultant to learn more about the best fit for you.