WHO'S ELIGIBLE?
The H-1B visa is an excellent way for professionals to gain employment in the United States. The individual may enter the U.S. to temporarily work in a specialty occupation based on the specialized knowledge they acquired through obtaining a U.S. Bachelor’s degree or its equivalent.
A yearly quota, or cap, is set on the number of H-1Bs that may be approved each fiscal year. Currently, 65,000 H-1Bs are available yearly to be issued to individual’s holding a bachelor’s degree or higher from a U.S. institution, or the equivalent of a U.S. bachelor’s degree or higher from a foreign institution. Of those 65,000 H-1Bs, 6,800 are reserved for the U.S.-Chile and U.S.-Singapore Free Trade Agreements. There are also an additional 20,000 H-1Bs available to individuals who have gained an advanced degree from a U.S. institution. It is generally a very good idea to file new H-1B cap-subject cases as early as possible because the H-1B cap has been met on the very first day of filing the last few years. It is a sign of the current economy in 2009, that the H-1B cap was not an issue for the April 1 filers.
Also be aware that not all petitions are subject to the H-1B cap. If you are filing an amended H-1B petition, petition for extension of status, petitions for new employment with tax exempt organizations or petitions for individuals already counted against the cap within the previous six years then you are not subject to the cap. What this means is that you may be eligible for a visa even if the H-1B cap is met prior to the filing of your petition.
H-1Bs become available at the start of each fiscal year on October 1. Applicants for H-1Bs may apply on April 1, six months in advance of the October 1 start date. Depending on the circumstances of the applicant, the H-1B may either be filed as a change of status from within in the U.S. or as consular processing from outside the U.S. Applicants requesting a change of status will generally be eligible to begin working on October 1, but will need to subsequently apply for an H-1B visa at a U.S. Consulate the next time they travel outside of the U.S. Applicants requesting consular processing will have to obtain their H-1B visa at a U.S. Consulate before they will be allowed to enter the U.S. to start working in H-1B status.
It is generally a very good idea to file new H-1B cap-subject cases as early as possible (i.e. on April 1) because the H-1B cap has been met on the very first day of filing the last few years. It is a sign of the current economy in 2009, that the H-1B cap was not an issue for the April 1 filers.
IMMIGRATION REQUIREMENTS
A specialty occupation is defined as an occupation that requires a theoretical and practical application of a highly specialized knowledge and the attainment of at least a U.S. Bachelor’s degree, or the equivalent, in the field. If the foreign worker’s education alone is not the equivalent of a U.S. degree, the immigration regulations provide that the person’s experience can be factored into the determination. Three years of on the job experience are deemed equivalent to one year of U.S. level university education. In cases requiring an equivalency determination, we work with a variety of companies that can evaluate your case and provide an opinion concerning your education/experience.
In determining whether a position requires the services of a professional, both the USCIS and the Department of Labor look to the general practice in the industry. If the minimum requirement for entry into the field is a Bachelors degree, then the position is considered to be professional in nature. For example, a Bachelors degree in electrical engineering is not required for employment as an electrician, but it is required for an electrical engineer.
The H-1B visa eventually facilitates the permanent residence process, a/k/a the green card, because it is not subject to the doctrine of immigrant intent. This means that a qualified individual may process her/his permanent residence, or green card, while she/he works in the United States with an H-1B visa. Lately, the green card process has become quite lengthy in terms of processing. This is a process that definitely should be started as soon as you determine you’d like to stay in the U.S. permanently.
QUESTIONS
If you have any questions concerning this visa or require our assistance, please contact our office at info@szelaw.com