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H-1B Category

Generally, the H-1B category is available for temporary workers filling “Specialty Occupation” positions. H-1B eligibility requires:

  1. The position offered must be considered a “Specialty Occupation”, i.e., the position requires the theoretical and practical application of specialized knowledge, requiring at a minimum a Bachelor’s degree for entry into the profession,and
  2. The foreign national worker must hold the required degree or the equivalent.

H-1B Cap:

A total of 85,000 new H-1Bs are available per government fiscal year. Cap related H-1Bs are available as follows:

  • 57,000 Available to All Qualifying Beneficiaries
  • 20,000 Available to Graduates holding U.S. Master’s degree or higher
  • 8,000 Available to Nationals of Singapore and Chile

H-1B Cap Exception:

  • The H-1B Cap does not apply in the following circumstances:
  • Extensions and H-1B transfers ARE NOT subject to the H-1B cap.
  • Employees who will work at an institution of higher education as defined in the Higher Education Act of 1965
  • Employees who will work at a nonprofit organization or entity related to or affiliated with an institution of higher education
  • Employees who will work at a nonprofit research organization or a governmental research organization

Timing:

Petitions for H-1B status can be filed up to six-months before the anticipated start date. Given that the H-1B cap has been quickly reached during the last 2 fiscal years, US Visa Pro advises employers to file cap related H-1B petitions as close to April 1st as possible.

Period of Admission:

An employer can obtain H-1B approval for a foreign national for an initial term of up to 3 years. Extensions of status are available for a maximum period of stay of 6 years. H-1B status may be extended beyond the six-year statutory limit under limited circumstances, including if the first petition in the permanent residency/green card process is filed before the foreign national’s fifth year anniversary in H-1B status. Please be mindful of this limitation on the H-1B temporary stay and plan accordingly.

Commencement of Employment:

H-1B approval is employer and position specific. Before commencing work with a new employer, a petition must be filed with the USCIS.

H-1B employment may commence upon approval of the petition. Under the portability provision of the INA, certain H-1B holders may be able to commence employment with the petitioning employer upon confirmation that the petition has been filed with the USCIS.

While Premium Processing is available for all H-1B petitions, it is particularly appropriate in situations where portability is not available. Under the Premium Processing Program, the USCIS will adjudicate a petition within 15 calendar days of filing for an additional USCIS filing fee of $1,000.