H-1B Specialty Occupations The H-1B visa classification allows employers to temporarily employ qualified foreign nationals in "specialty occupations" in the United States and is the most widely used visa category for employment of highly skilled foreign nationals in the US.
Specialty occupations are professional positions that normally require a specific four-year baccalaureate degree as a minimum requirement for entry into the field. In other words, the position must require the theoretical and practical application of a body of highly specialized knowledge. The candidate must either meet the degree requirement for the field or possess the equivalent recognition of expertise and related professional experience, as determined by USCIS. Employers must also certify that they will pay H-1B workers at least 100% of the prevailing wage for the occupation in the geographic area where the employment will take place.
The Bae Law Group has extensive experience in the preparation and administration of H-1B petitions. Through the use of customized questionnaires and templates, we are able to prepare H-1B petitions with maximum speed and efficiency. Because the H-1B visa classification is subject to an annual quota or cap and frequent regulatory and USCIS policy changes, we frequently advise our clients on regulatory compliance issues to ensure that our clients are properly informed and can most effectively utilize this highly sought category.
The H-1B Quota
Each year, coinciding with the start of the government’s fiscal year on October 1, the USCIS makes a predetermined number of new H-1B visas available to those who qualify. Since the number of available new H-1Bs dropped dramatically in 2004, the number of first time individuals requesting these visas has vastly outnumbered the visas allotted. The H-1B “cap”, as it is known, is presently set at roughly 58,000 with an additional 20,000 H-1Bs available to those who have already earned a master’s degree from an accredited US institution. Based on the previous years’ filings, the USCIS should expect to receive more than enough petitions to meet the regular H-1B cap of 58,000 during the first week that filing is allowed, the first week of April 2009. It is also likely that the demand for master’s cap H-1Bs will exhaust that cap simultaneously or shortly thereafter. It is important to keep in mind that those foreign nationals who are already in the US working pursuant to an H-1B visa do not count towards the yearly H-1B cap.
Our country depends on our ability to access the world's talent pool. This is achieved in part through the H-1B program. As a result of this lack of available H-1B visas, US employers are left without viable or legal options to fill their needs for highly skilled workers. In addition, many potential H-1B workers, including those who have obtained advanced degrees from US universities, will be forced to leave the United States, unable to pursue a career in the US for a period of at least 18 months. The Bae Law Group continues to monitor new developments in this emergent situation and supports efforts to force Congress to deal with this H-1B crisis. For information as to how you can contact Congress, please click here.
Filing H-1B cases under the H-1B Quota
Once again, it is expected that the USCIS will receive more petitions for new H-1Bs than there are numbers available, and The Bae Law Group is now preparing for the early April filing deadline. Assuming that H-1B numbers are immediately exhausted, such petitions will be subject to a random selection lottery to determine which filings will be eligible for adjudication. To guarantee that an H-1B petition subject to the cap will take part in this year’s lottery, it must be received by the USCIS no later than April 1, 2009.
The Bae Law Group advises our clients to plan ahead as much as possible. If you are an employer with a potential H-1B candidate or you are a foreign national considering working in the US on an H-1B visa, contact The Bae Law Group as soon as possible at niv@baelawgroup.com.
New H-1B candidates should have a passport (valid until at least 2010), official university transcripts, and if they are currently in the US, copies of all past immigration-related documents. Potential H-1B employers should be prepared to provide some basic corporate documentation including contact information, information about the company, and general financial information.
An H-1B cap case processing timeline is availble here. See our H-1B cap FAQ section or contact the Bae Law Group’s nonimmigrant visa group with any questions you have about filing an H-1B!
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