The H-1B program was designed to provide U.S. companies with the ability to fill available positions in their companies with foreign workers, on a temporary basis. The H-1B program is not open to just any position. It requires that the available position with a U.S. employer be a specialty occupation.
The H-1B Specialty Occupation Requirement
A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge. The specialty occupation requirement can be met in a number of ways:
- A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher.
It is important to note that the U.S. employer does not have to prove all four of those criteria to meet the specialty occupation requirement.
Annual H-1B Petition Quota
There is an annual cap (often referred to as a “quota”) on new H-1B petitions. The numerical limitation is 85,000 H-1B visas per year. 25,000 of those 85,000 are carved out for foreign workers holding an advanced degree from an accredited U.S. college or university (frequently referred to as the “master’s cap”).
The numerical limitation does not apply to H-1B extensions, amendments or change of employer petitions, provided the H-1B beneficiary has not exhausted 6 years in H-1B status unless the H-1B beneficiary can benefit from the American Competitiveness in the 21st Century Act (AC21). AC21 can allow H-1B extensions beyond 6 years in certain cases where a beneficiary has an approved I-140 Immigrant Petition for Alien Worker but is unable to apply for permanent residence due to per country limitations on annual green card numbers. H-1B extensions beyond 6 years may also be possible under AC21 for long pending labor certifications.
Others Who Qualify Under H-1B
An H-1B beneficiary’s spouse and children may obtain H-4 dependent status for the duration of time the H-1B beneficiary maintains their status.
Further, based on Free Trade Agreements, the H-1B1 status is available for citizens of Chile and Singapore.
Congress also carved out a path for temporary employment in the U.S. for a foreign fashion model who is of distinguished merit and ability as an H-1B3.
Speak with an Immigration Attorney
Sunil C. Patel Immigration Law has extensive experience in assisting U.S. employers obtain H-1B status for their foreign employees. We are committed to honest, cost-effective immigration advice and services in every case. Schedule a consultation with attorney Sunil.
