The H-1B categories apply to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability.  A specialty occupation requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education (Bachelor's degree or its equivalent).

U.S. Citizenship and Immigration Services (USCIS) announced on June 1, 2006 that it has received a sufficient number of H-1B petitions to meet the congressionally mandated cap for fiscal year 2007 (FY 2007).  The "final receipt date" for H-1B petitions subject to the FY 2007 annual cap was May 26, 2006.

This means that many companies that need highly educated foreign professionals with critical skills will have to again wait over a year before they can obtain this needed expertise.  This is bad news for U.S. companies.  Congress greatly underestimated the need for H-1B visas when it established the cap, and the result could impact the economy in a negative way.

Cap and Set Asides:  Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H-1B cap."  Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are annually set aside for the Chile/Singapore H-1B1 program.  As a result of reserving 6,800 H-1B1 visas for FY 2007, the H-1B cap for the fiscal year is 58,200.  However, USCIS has added back to the H-1B cap 6,100 unused FY 2006 H-1B1 visas, for a total of 64,300, as described below.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year.  As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding the remaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable.   Because unused H-1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H-1B filing season to use these visas.  The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007.

Extension request petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States
• Change the terms of employment for current H-1B workers
• Allow current H-1B workers to change employers
• Allow current H-1B workers to work concurrently in a second H-1B position

Labor Condition Application
The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the I-129 petition.  

Some terms and conditions of the H-1B classification:

• Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
• A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a ?nonfrivolous? H1-B petition for the nonimmigrant.
• Multiple employers require multiple H-1B petitions.
• The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
• H-1B foreign speacialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

Document Requirements for H-1B Classification Petition

The petition should be filed by the U.S. employer with:

• A certified labor condition application from the Department of Labor;
• Copies of evidence that the proposed employment qualifies as a specialty occupation;
• Evidence the alien has the required degree by submitting either:
•  A copy of the person's U.S. baccalaureate or higher degree which is required by the specialty occupation;
• A copy of a foreign degree determined to be equivalent to the U.S. degree; or
• Copies of evidence of education and experience which is equivalent to the required U.S. degree;
• A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
• A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

USCIS REACHES FISCAL YEAR 2008 H-1B CAP ON FIRST DAY OF FILING PERIOD

WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2008(FY 2008). USCIS will use a random selection process(described below) for all cap-subject fillings received on April 2, 2007 and April 3, 2007. USCIS will reject and return along with filing fee(s) all petitions received on those days that are not randomly selected.