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H-1B Visa

What is H-1B visa classification?

H-1B visa classification allows employers U.S. employers to petition to hire foreign nationals to work temporarily in the United States in a specialty occupation.

What is H-1B CAP?

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. In addition, there are 20,000 visas on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

How can I file a CAP Exempt H-1B?

The CAP only applies to new H-1B petitions. A person is not counted against the CAP if they have already been counted against the CAP within the past six (6) years. This means that you can apply for H-1B with a new employer and will not be counted against the CAP.

There is also a category of H-1B petitioners who are Cap-exempt. This category includes J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal program. It also includes beneficiaries of employment offers at institutions of higher education, and petitioners who are a non-profit affiliated or related to an institution of higher education.

Who is considered as a U.S. employer under H-1B classification?

A U.S. employer is defined as a company registered to operate business in the United States. A U.S. employer must prove employer-employee relationship with the foreign national employee to qualify under the H-1B classification.

What is a specialty occupation?

A specialty occupation means an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States.

What are the H-1B Employer’s requirements?

Employer must prove that it will have authority to hire, supervise, remunerate and fire the H-1B employee.

Employer must prove that the position to be held by the H-1B employee is a specialty occupation.

Employer must pay the H-1B employee at least the prevailing wage in the area of employment.

What are the H-1B Employee’s requirements?

Employee must possess at least a Bachelor’s Degree.

Employee must be hired to work in the position related to his/her field of study.

Employee must have maintained legal status in the U.S. if he/she is applying for change of status.

Employee must establish relationship in order for his/her spouse and children to accompany him/her as dependents in H-4 status.

For more information, contact our immigration lawyers and asylum attorneys.

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