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H-1B Non-Immigrant Visa

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The H1B Non-Immigrant Visa – The Specialty Occupation Visa

The H-1B nonimmigrant visa (also known as the special occupation visa) applies to an individual who performs services which qualify as a specialty occupation. An important consideration is that the H-1B visa has an annual numerical limit set each fiscal year. Therefore, early planning is essential.

Exemptions to the H-1B annual cap

Institutions of higher education nonprofit research organizations related to institutions of higher learning, or government research organization are also exempt from the annual H-1B numerical cap.

Those who have ever held H-1B status may be exempt from the annual cap. Those currently in H-1B status and seeking an extension of stay or a transfer to a new employer are further exempt from the cap.

The Employer Files the Petition

It is the U.S. employer who files the petition on behalf of the prospective foreign employee. As such, the employer must have control over the work of the employee.

Timing to file the H-1B Petition

The H-1B petition can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

Qualifications for a H-1B nonimmigrant visa

The employer must be able to demonstrate that the job offered meets at least one of the following criteria:

  • The position requires at a minimum a Bachelor’s degree in a specific field or its equivalent.
  • The prospective employee must hold at a minimum a Bachelor’s or higher degree in a specific field or its equivalent for the position.
  • The position offered is one that is so unique or complex that it can only be performed by someone who holds a specialty degree.
  • The duties are so specialized that a bachelor’s degree or higher degree is required.
  • The position is being offered at the required wage (which is the higher of the actual or prevailing wage).

The prospective employee must show that he/she meets at least one of the following:

  • Holds a foreign degree that is equivalent to a U.S. bachelor’s or higher degree in a specific field (a credential evaluation is generally required from an accredited organization).
  • Holds a U.S. bachelor’s degree, or higher, in the specific field
  • The education, training in the field, or level of experience in the specialty (usually 3 years) is equivalent to the completion of a bachelor’s degree through different positions held in that specialty.

Validity of the H1-B visa valid

Once the petition is approved, the H-1B visa is valid for a period of three years and can be extended for another period of three years if the employer and employee continue to meet the necessary requirements.  There are exceptions to this rule.

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