The H-1B Visa is a popular option for employers seeking to hire nonimmigrant foreign beneficiaries to work  in “specialty occupations.” A “specialty occupation” requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree, or its equivalent. The H-1B authorizes the temporary employment of qualified foreign nationals thereby helping employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce.

The H-1B visa has an annual numerical limit, or cap, of 85,000 visas each fiscal year.  20,000 visas are reserved for foreign nationals with a U.S. master’s degree or higher, and 6,800 visas are reserved for foreign beneficiaries from Singapore and Chile. Additionally, institutions of higher education (or its affiliated or related nonprofit entities), nonprofit research organizations, or government research organizations are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. April 1 marks the first day of eligibility for filing H-1B cap-subject petitions, as filings are accepted by U.S. Citizenship and Immigration Services (“USCIS”) six months in advance of the start of the next fiscal year. It is anticipated that the number of H-1B cap subject petition filed will exceed the annual limit for new H-1Bs during the first five business days in April. All H-1B petitions properly received during the first five business days in April will be placed in a random-selection lottery. Those petitions received outside the window or which were improperly filed will be rejected.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater. For more details, please contact us.

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