Practicing Exclusively Immigration Law
in Palm Beach County, FL
H-1B Visa
This visa category applies to people who wish to perform services in a specialty occupation.
General Requirements
The job must meet one of the following criteria to qualify as a specialty occupation:
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Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
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The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
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The employer normally requires a degree or its equivalent for the position
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The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
To qualify for an H-1B visa, the beneficiary (employee) must meet one of the following criteria:
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
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Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
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Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
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Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
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Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
H-1B Cap
Most H-1B applications are subject to a congressionally mandated cap of 65,000 successful petitions per year, with an additional 20,000 available for holders of a Masters degree obtained from United States educational institution. In recent years, applications have exceeded the cap, and petitions have been drawn on a lottery basis. April 1 is the earliest date petitions can be filed for the fiscal year beginning October 1, and petitions after the fifth working day in April have been rejected until the following April. There is more about cap for the current U.S.C.I.S. fiscal year here.
Exempt Applications
If a person has been issued an H-1B work visa within the last six years, they are, as a person, exempt from the cap.
In addition, an exemption category is available to U.S. employers that fall into one of the three exemption categories including:
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Higher education institution
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Non-profit organization associated with a higher education institution
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Non-profit research or government organization
Requirements for Higher Education Institution
In order for a higher education to qualify, it must meet the USCIS mandated criteria. According to Section 101 (a) of the Higher Education Act, an institution of higher education must:
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Be considered a public or non-profit institution
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Provide admission to students who have earned a secondary education
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Be a licensed by the proper institution to provide education beyond secondary school
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Offer educational programs which award bachelor’s degrees or minimum two-year educations towards a degree
H-1B Non-Profit Requirements
In order to be considered a non-profit that is associated with a government organization or institution of higher education it must:
Be a non-profit entity. (Non-profits that do not qualify: service, community, policy, and art organizations)
Be associated with the institution through shared ownership or board control
OR
Act as a branch, member of subsidiary
USCIS defines a non-profit research organization as one that is “primarily engaged in basic or applied research.” The most common not-for-profit institutions are colleges and universities with affiliations to medical labs, research units, and hospitals.
H-4 Visa for Family members of an H-1B Visa Holder
Family members of an H-1B worker may be admitted to the United States in the H-4 category. Qualifying family members include only the spouse and unmarried children under 21 years old. Family members are admitted for the same period for which the principal family member is admitted.
Family members may alternatively be admitted in other nonimmigrant categories for which they qualify, such as the F-1 category for children or spouses who will be students or the H-1B category for a spouse whose employer has also obtained approval of an H-1B petition to employ the spouse.
H-4 family members may undertake studies while remaining in the H-4 category. Family members cannot engage in any form of employment in the H-4 category, however. In order to work, family members must obtain USCIS permission through the approval of a change of status application to a nonimmigrant category permitting employment.
Contact us to discuss your situation and see if the H-1B visa is appropriate to your needs.