H-1B Visa for specialty occupations (professionals)

Specialty Occupations

The H-1B categories apply to non-citizens 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). The H-1B visa, is the most common visa type for which college-educated employees are eligible. You may also be qualified based upon previous work experience.

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.

Fiscal Year 2012 Cap

USCIS has begun accepting H-1B petitions that are subject to the FY 2012 cap as of April 1, 2011. You may file an H-1B petition no more than 6-months in advance of the requested start date. (Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011).

The FY2012 H-1B cap is the same as it was for the FY2011 fiscal year-65,000 H-1B visas (plus 20,000 for holders of U.S. master's degrees). However, now that the economy has begun to improve and employers show more inclination for increased hiring, we do not expect that the year's H-1B numbers will remain available for as long as they did in 2010. (They did not reach the last cap until January 2011). Accordingly, we urge employees and employers to prepare and file their H-1B petitions as soon as possible. To ensure that your petition has the greatest chance to be included in the quota, act now. Please contact us to begin preparation of your H-1B petition.

Extension Requests

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.
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Please call our office to discuss and evaluate your case if you wish to apply for an H-1B visa in the coming year.

E-3 Certain Specialty Occupation Professionals from Australia

The requirements for an E-3 are very similar to the H-1B category.  The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States.

Eligibility Criteria

To qualify for an E-3 visa, you must demonstrate that you:
Are a national of Australia
Have a legitimate offer of employment in the United States
Possess the necessary academic or other qualifying credentials
Will fill a position that qualifies as a specialty occupation

Initial Period of Stay is for 2 years
Extension of Stay are allowed for up to 2 years per extension. Unlike H-1Bs there is no maximum number of extensions, with some exceptions.

Family of E-3 Visa Holders
Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but not your children.