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H-1B Specialty Occupation Visa

The H-1B is a temporary (non-immigrant) employer-sponsored visa for a foreign worker in a “specialty occupation.” The H-1B can be issued for up to 3 years, and then extended for an additional three years, for a total of six years in H-1B status. Thereafter, an employer must have started the green card process on behalf of the H-1B employee for extensions beyond this period. There is a “cap” on the number of new H-1Bs available for most petitions. The employer undertakes certain obligations when sponsoring an H-1B employee.

The Minneapolis business immigration attorneys of Ostrom & Peterson LLC assist employers and employees worldwide who are seeking U.S. H-1B visas. We encourage you to contact us if you need legal advice regarding the H-1B visa process.

“Specialty Occupation”

For a successful H-1B petition, the job offered must be that of a “specialty occupation.” A specialty occupation is one which requires at a minimum a Bachelor’s degree in a relevant field, or the equivalent. USCIS places great emphasis on the Bureau of Labor and Statistic’s Occupational Outlook Handbook to determine whether or not a particular position requires a specific degree. The employee must also have a degree in a relevant field, or the equivalent. This seems relatively straight-forward, but USCIS can take a narrow view on what is a “specialty” and whether or not the employee has the equivalent of a Bachelor’s degree.

H-1B Cap

The number of new H-1Bs available each federal fiscal year is 85,000. Of this number, 20,000 are reserved for those with Master’s degrees or higher. This limit on the number of new H-1Bs is called the “H-1B Cap.” The federal fiscal year runs from October 1st through September 30th. The first day that an employer can file a new H-1B is April 1st, for an October 1st start date. In recent years, USCIS has announced during the first week of April that it has hit the “Cap,” meaning that no additional new H-1B petitions will be accepted for that fiscal year. USCIS then conducts a lottery to determine which of the petitions received will be processed — first conducting a random selection of 20,000 of the Master’s or higher degree petitions received, and then rolling the extra of these types of petitions into a second lottery to determine which of the remaining petitions (both Bachelor’s degree and Master’s) will be processed for the remaining 65,000 H-1B slots.

The H-1B Cap applies to those seeking H-1B status or an H-1B visa for the first time, or to those who previously were in the U.S. in H-1B status for six years, spent one year abroad, and are now eligible for another six-year period. The Cap does not apply to H-1B employees who will work for or at a university or affiliated nonprofit or research institute. If an H-1B employee currently works for an exempt employer, such as a university, and then wants to move to a cap-subject employer (most private sector organizations), the employee then becomes subject to the cap and will require one of the 85,000 visas.

H-4 Dependents

Spouses and children under 21 of H-1B employees can accompany and remain in the U.S. with the H-1B worker on H-4 visas. The H-4 in general does not allow for work authorization. If the H-1B spouse has either an approved I-140 Petition for Alien Worker, or is in the 7th year of an H-1B, based on underlying employment-based green card application, then the H-4 spouse or child can apply for work authorization.

Employer Responsibilities when Sponsoring an H-1B Visa

The employer when sponsoring an H-1B undertakes certain obligations. Among these are the following:

  1. Paying the H-1B the required wage for the position, which is the higher of the actual wage (what the employer typically offers for the position) or the prevailing wage (as determined by the Department of Labor or a recognized alternative wage source) for the position;
  2. Maintaining a Public Access file which contains the relevant required documents for H-1B sponsorship;
  3. Amending the H-1B when necessary, if there is a material change in job duties, job location, or a decrease in the wage; and
  4. Offering to provide the employee with the reasonable cost of airfare home, if the employer ends the H-1B employee’s employment prior to the end of the H-1B visa.

How Our Minneapolis Immigration Attorneys Can Help

Ostrom & Peterson’s attorneys collectively have over 35 years’ experience processing H-1Bs. We can help you assess whether the position offered and the employee’s qualifications are a good fit for an H-1B. We can also provide you with insights for what the Department of Labor considers the Prevailing Wage for a position, before you file. We can determine whether the H-1B Cap applies to your case, ensure that your Petition is complete if you need to file under the Cap, and suggest alternatives. With our H-1B filings, we provide support from A to Z for a successful H-1B Petition, as well as guidance and preparation of relevant documents required for the Public Access File, for immigration compliance.

Based in Minneapolis, our immigration attorneys work with employees and companies in the Twin Cities and throughout the globe. We welcome you to contact Ostrom & Peterson for assistance with your immigration matter.

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