Who May Qualify for H-1B?

• Having appropriate degree for occupation - U.S. university degree or foreign equivalent degree required for specialty occupation, baccalaureate or higher; or equivalent foreign degree;
• Having education, specialized training, and/or progressively responsible experience equivalent to the required degree in positions directly related to the specialty; or
• Holding an unrestricted state license or registration authorizing the candidate to practice the specialty occupation in the state of intended employment.

Specialty Occupation
To qualify for Specialty Occupation, the position must meet one of the following criteria:

• A baccalaureate or higher degree or equivalents is normally the minimum requirement for entry into the particular position;
• Degree requirement is common in the industry in parallel positions among similar organizations or alternatively that the particular position is so complex or unique that a degree is required;
• Employer normally requires a Bachelor degree or equivalent;
• Nature of the specific duty is so specialized and complex that knowledge required to perform the duty is usually associated with attainment of a degree.

Recognized Specialty Occupations for Professionals:

Computer Programmer, Computer Systems Analyst, Computer Business Systems Analyst, Technical Recruiter, Network Systems Admin, Software Engineer, HR Manager, Accountant, Acupuncturist, Administrative Service Manager, Chiropractor, Dietician, Electronics Specialist, Fashion Designer, General Manager, Graphic Designer, Hotel Management, Industrial Designer, Interior Designer, Investment Analyst, Journalist, Librarian, Management Analyst, Medical Records Librarian, Medical Technologist, Minister, Orthopedist, Pharmacist, Showroom Manager, Social Worker, Software Design Engineer, Technical Publication Writer, Vocational Counselor, Webographer. etc

Current H-1B Cap:
H-1B employees are limited to 65,000 per year. Petitions by universities and government and non-profit research organizations are exempt.

Duration of H-1B Status:
Most of the H-1B petitions are initially approved for 3 years, with an extension of 3 years. The additional 1 year can be applied if the beneficiary has an EB preference petition or labor certification application that has been pending for at least one year when the sixth year expires.

Change of Employment:
A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer provided the following conditions are met:

1. Lawfully admitted;
2. The new petition is non-frivolous;
3. The new petition is filed before the date of expiration of the period of authorized stay;
4. Subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition.

H-1B Cap and Change of Status Problems:
H-1B Cap is exempted for the higher education institutes, government affiliated non profit organizations.

H-1B Cap is not applied to persons already in H-1B status seeking to change employment, or extend the status.
If a person in H-1B status employed by a H-1B Cap exempted organization (such as university), wants to change employment to a H-1B Cap applied employer, he cannot do so within that FY when the cap has been reached. The new prospective employer can file the  petition on his behalf if the new employment will start on or after the beginning of the next FY.

For an application pending at the USCIS before the cap for FY is reached, if the beneficiary's non-immigrant status (for example, F1/OPT, or B2) expires before the beginning of the next FY, his change of status application will be denied even if his H-1B petition will be approved. He will probably, in that situation, be required to return to his home country to apply for a H-1B visa to enter the U.S.

For a person who will be out of status before the next FY, if his/her spouse has a valid non-immigrant status such as L1, O1, F1, E1, etc., he/she may want to make a timely application of change of status to switch to the non-immigrant status as a spouse of these respective categories.  He/she can apply for H-1B for the following FY once the USCIS starts to accept applications.

H-1B PROCEDURE & DOCUMENT CHECKLIST

1. LABOR CONDITION ATTESTATION

• Determine the "actual wage" for the job
• Obtain the "prevailing wage" for the job
1. Request information from the state employment security agency (SESA)
2. Locate an independent authoritative source survey
• Submit Labor Condition Application to Department of Labor for approval.

2. INS PETITION

• Form I-129 and H supplement, Form I-907 for premium process
• Documents from the about employer
• Most recent Federal Tax Return
• Copy of advertisements / brochures / outlines
• Company organization chart
• Contracts and agreement from your client if the job located at your client site
• Documents of foreign worker's qualifications
• Resume
• Copy of college and university diplomas and transcripts
• Education evaluation of foreign degrees (if necessary)
• Education/work evaluation (if necessary)
• Copy of professional licenses (if any)
• Copy of INS practical training card (if any)
• Copy of U.S. visas
• Copy of passport
• Copy of INS Form I-94, Arrival/Departure card (if in US)
• Company support letter

3. VISA APPLICATION AT US EMBASSY / CONSULATE