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The H-1B visa is a non-immigrant visa issued by the United States, and allows U.S. employers to hire foreign employees in specialty occupations. The H-1B visa allows the holder to work in the U.S. under the employer who petitions the visa for 3 years extendable to 6 years.
The H-1b can be extended beyond 6 years as per the American Competitiveness in the 21st Century Act (AC21)
Specialty occupationis defined as an occupation that requires(a) theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.
These fields of occupation includes but not limited to accounting, architecture, biotechnology, business specialties, chemistry, education, engineering, law, mathematics, medicine and health, physical sciences, social sciences, theology, and the arts.
In order for a job to be classified as a specialty occupation under USCIS regulations, at least one of the criteria has to be met. These criteria include:
A valid employer-employee relationship is one in which the employer has the right to hire, pay, fire, supervise and control the employment of the H-1B employee.
Also, a sole owner or a majority shareholder of the petitioning company can demonstrate an employer-employee relationship,if it is proven that the petitioning company has the power to control the beneficiary’s employment. An example is if the preferred shareholders, investors, board of directors, or other factors show that the petitioning company has rights to control the terms and conditions of the employment. These terms and conditions of the employment include those mentioned above such as, the right to hire, pay, fire, supervise, and control the employment of the beneficiary.
Evidence you can submit to distinguish between ownership interest and right to control employment includes
The position that the beneficiary is needed for has to be one that is unique or complex to the extent that a skilled professional with at least a bachelor’s degree in that field can perform.
The Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) is used to help determine if the job’s minimum requirement is a degree in the related field. If the Occupational Outlook Handbook (OOH) does not indicate that a degree is the minimum requirement in the related field, you can still provide evidence to validate that the position normally requires a degree in the related field by:
It is possible that the position the beneficiary is required to fill does not require a degree. If that is the case, the beneficiary can qualify if:
The beneficiary as anunrestricted state license, or certification or registration that permits the beneficiary to perform the specialty occupation and to be straightaway engaged in that specialty in the state of intended employment.
If the beneficiary has an education, specialized training or work experience in the related field equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation.
A database is maintained by the DOL (flcadatacenter.com) that includes prevailing wage levels by occupation and work location. Private wage surveys can also be used as long as they meet the criteria for wage surveys.
The H-1B visa has an annual numerical limit or a cap. This is 65,000 for each fiscal year. In addition, the H-1B visa can be filed 6 months before the start of the fiscal year, which begins on October 1. TheUnited States Citizenship and Immigration Services (USCIS) exempt thefirst 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higherfrom the 65,000 cap.
The H-1B visa cap is simply the limit to total number of petitions allowed for each fiscal year. As of the fiscal year of 2017, the cap is 65,000 with an exemption to the first 20,000 beneficiaries with an advanced U.S. degree.
The annual cap is 65,000 as already mention. It is also referred to as the general quota/cap or regular quota or non-advanced degree quota/cap.
This has an annual cap of 20,000 and applies to first 20,000 petitions filed on behalf of beneficiaries with U.S. master’s degree or higher. Subsequent petitions filed on behalf of beneficiaries with U.S. master’s degree or higher is included as part of the Regular H-1B Visa Cap.
Qualifyingfor H1B Advanced Degree Cap
To qualify for the Advanced Degree Cap, you must hold a Master’s degree or higher from an United States Institution of Higher Education as per Section 101Ia) of the Higher Education Act of 1965.
This is set aside for applicants from Chile and Singapore and has an annual cap of 6,800.
There are H-1B visa petitions that are exempted from the H-1B visa cap. These include:
Due to the H-1B visa cap, a random selection system commonly known the H-1B lottery is used to select randomly those to be given the H-1B visa when the number of petition exceeds the H-1B cap. This is conducted by the United States Citizenship and Immigration Services (USCIS), if the cap is exceededfor the fiscal year. Firstly, this computer-based random selection is done for the Advanced degree cap. Those who are not picked are added to the regular cap and another computer based random selection is done to select those who receive the H-1B visa.
This makes it difficult for companies to hire foreign workers as the cap and random selection process is based on chance. For the 2016 fiscal year, the USCIS received 233,000 petitions. The total cap of 85,000 (Regular + Advanced Degree Cap) means more than a half of applicants were rejected. As there are no domestic workers to do the job and companies cannot sponsor foreign workers for the job, the jobs are often outsourced overseas which leads to the loss of revenues for the United States.
"At the Law Offices of Prashanthi Reddy, PLLC, the majority of our work is employment based immigration, we are therefore in a unique position to advise our clients on best practices while filing H-1b Visa cases"