H-1B Professional Work Visas

H-1B Fiscal Year (FY) 2011 Cap Season

The H-1B Program

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

How USCIS Determines if an H-1B Petition is Subject to the FY 2011 Cap

The USCIS uses the information contained in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 14 through 15) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. 

FY 2011 H-1B Cap Count

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap.  It includes cases that have been approved or are still pending.  It does not include petitions that have been denied.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. 

The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will be performing services of an exceptional nature in connection with Department of Defense (DOD).

The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, the USCIS is required to count those cases against the cap for the remainder of the fiscal year. 

H-1B Numerical Cap Exemptions

H-1B nonimmigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap. In addition, H-1B renewal petitions are exempt from the numerical cap.

Persons with a "Specialized Occupation", and a university degree may apply for the H-1B Professional Work Visa. This visa is valid for up to 6 years. Applicants must have a U.S. job offer. A minimum requirement for the job offered must be the possession of at least a bachelor's degree equal to a U.S. four year undergraduate university degree, or a combination of work experience and academic background equal to a 4 year U.S. university degree. The U.S. Immigration Services has established a practical test in order to determine whether or not the job offered involves a "specialty occupation". The most important elements include:

1. A bachelor's degree or higher in a specific field is the entry-level requirement,
2. The degree requirement for the job offered is accepted throughout the industry,
3. The duties and responsibilities of the position offered are so complex that a university degree is required, and
4. The level of responsibility involved in the position is generally associated with professional status.

Commonly accepted groups of "specialty occupations" include but are not limited to: Engineers, Computer Analysts, Doctors, Scientists, Architects, Management Consultants, and Market Research Analysts. General business managers and executives are not considered to be involved in "specialty occupations" for H-1B visa purposes. However, specialized management positions may qualify for H-1B status.

Foreign university degrees must be evaluated in terms of their equivalence to U.S. university degrees, before proceeding with the H-1B visa petition. The 1990 U.S. Immigration Act exempts H-1B aliens from showing that they did not intend to immigrate to the U.S. at the time that they applied for their initial H-1B Temporary work visa, or renewal. Therefore, H-1B aliens are able to successfully renew their visas, even after applying for permanent residency (Green Card) status. In other visa cases, the U.S. Immigration service routinely denies such renewal requests, due to the problem of conflicting intent. In these cases the alien must show that he/she intends to remain in the U.S. only temporarily, and then return to his/her home country when the job is terminated. Once such an alien applies for permanent residency, the U.S. authorities assume that his/her real intent is to remain in the U.S. permanently.

The processing time for an H-1B visa is usually 4-6 weeks. Spouses and dependent children of H-1 aliens receive H-4 visas allowing them to accompany the principal alien, but not to work. Each H-1 visa is tied to the sponsoring employer. An H-1 alien in the U.S. may change employers provided that the new employer has obtained approval of a new H-1 petition on behalf of the alien. H-1 aliens are not exempt from the Labor Certification process when applying for permanent residency. This process may take from 12 months to 2 years to complete. During that time the U.S. employer must prove that no U.S. citizen or resident is qualified to assume the position offered.

Labor Condition Application (LCA)

The I-129 petition for H-1B visas, must be filed with a certified Labor Condition Application or LCA. To obtain certification the employer must show that the salary for the position offered is at least equal to the prevailing wage in the area of the intended employment. In the event that the employee is to work at multiple locations, not within the same geographic area, a certified LCA must be provided for each employment location. All LCAs must be filed through the new Labor Department "iCert" system. The processing time to obtain certification is only one week.

Foreign Medical Graduates

Foreign medical graduates interested in providing direct patient care for an employer in the U.S. must meet the following conditions in order to qualify for H-1B status:

1. The foreign medical graduate must have either passed the FLEX exams, or equivalent examinations such as the National Board of Medical Examiners certifying exams (parts I, II, and III) and the United States Medical Licensing Exams (steps 1, 2, and 3).;
2. The foreign medical graduate is competent in oral or written English;
3. The foreign medical graduate has a full unrestricted license to practice medicine in a foreign state; and
4. The foreign medical graduate has a license or other authorization required by the state of intended employment to practice medicine. Conditions 1,2 and 3 need not be met by alien graduates of U.S. medical schools.

USCIS Petition Fees

A Data Collection Fee of $1,500 is required for companies with over 25 employees, and $750 for companies with no more than 25 employees. H-1B petition filed by institutions of higher education or a related or affiliated nonprofit entity, as well as nonprofit research organization or a governmental research organization are exempt from the $1,500 and $750 Data Collection Fee. The Fraud Prevention and Detection Fee is $500, which must be paid by petitioners seeking a beneficiary’s initial grant of both the H-1B and L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 Fraud Prevention Fee. The I-129 Petition is $320.