H-1B Specialty Occupation Visa FAQs

Q: What is an H-1B classification?

A: An H-1B nonimmigrant classification is available to individuals in a "specialty occupation," defined by immigration regulations as an occupation that requires a U.S. Bachelor's degree, or its equivalent, for entry into the field.

Grzeca Law Group's Specialty Occupation Lawyers have vast experience with the H-1B classification and can help companies apply for an initial H-1B for a new employee, transfer an H-1B classification for a new employee to the company, or amend and/or extend the H-1B of an employee currently in H-1B status. Please click here to learn more about the H-1B classification.

Q: What is a specialty occupation? Can you give me more details about this?

A: A specialty occupation requires a U.S. Bachelor's degree, or equivalent, for entry into the field. The degree(s) must be in a field related to the position. An equivalent may be a single degree or multiple foreign degrees or a combination of degree(s) and coursework. Education and/or experience presented as "equivalent" to a U.S. degree must be confirmed by a credentials evaluation.

Q: How long is an H-1B classification good for? How long can a foreign national be in H-1B status?

A: An H-1B classification is usually granted initially for three years and may be extended for an additional three years. Time spent outside of the U.S. during the H-1B tenure can be "re-claimed" or "recaptured" to extend the H-1B beyond the 6th year anniversary.

Q: Is there an annual limit on the number of H-1B visas?

A: U.S. law limits the number of H-1B's to 65,000 per year, measured from the federal government's fiscal year starting on October 1st. In addition, up to 20,000 foreign nationals with Master's or higher level degrees from U.S. institutions of higher education will be exempt from the H-1B cap each year. Petitions for such individuals that are filed after the 20,000 exemptions are granted will be counted against the "cap."

The cap does not apply to individuals employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization. The cap also does not apply to current H-1B holders who were previously counted in the prior 6 years, e.g. H-1B extensions, changes in employment terms or employers, or a second concurrent H-1B.

Q: What happens when the cap is reached?

A: Once the cap is reached for a particular fiscal year, no new H-1B petitions can be filed until the following April 1st, for positions beginning no earlier than October 1st of that same year.

For the federal fiscal year beginning October 1, 2008, the limit of 65,000 was reached before April 7, 2008, with over 150,000 petitions being submitted.

Q: I want to hire a foreign national who is working for another employer on an H-1B classification. What do I need to do?

A: H-1B classification authorizes employment only with the sponsoring employer. However, an individual in H-1B status may begin working for a new H-1B employer as soon as that employer files a "nonfrivilous" H-1B petition on their behalf if certain conditions are met.

Our office can prepare the necessary documents and forms for the "portability" of H-1B classification. Once the petition has been properly received by U.S. Citizenship and Immigration Services (CIS) the individual can begin working for the petitioning company.

Q: When can our new employee start once we file this H-1B portability petition?

A: An H-1B employee who has properly "ported" to a new employer is eligible to begin employment with the company upon the receipt of the petition by U.S. Citizenship and Immigration Services (CIS). Proof that the petition has been properly filed with the CIS will come in the form of a "receipt notice." If the company should choose to employ this individual prior to receiving the original receipt notice in the mail, but after the petition has been delivered to CIS, the company would assume the risk that if the petition is not properly received by the CIS, the employee would be ineligible to work with the company.