H-1B and H-1B1 Specialty Occupations

HSPRD attorneys have extensive experience assisting employers navigate the complex process of obtaining or extending H-1B status for their employees and prospective employees.  H-1B is a nonimmigrant status available for the employment of foreign nationals in “specialty occupations” or as fashion models of distinguished merit and ability.  H-1B specialty occupations are occupations that require the theoretical and practical application of a body of highly specialized knowledge.  A specialty occupation is typically a professional position requiring at least a bachelor’s degree in a particular field of study or its equivalent in education, training, and experience.  Examples of positions that are typically considered to be “specialty occupations” include engineers, architects, computer programmers, accountants, doctors, lawyers as well as a many other occupations normally requiring a bachelor’s or higher degree in a particular field of study.

Exclusive of the exceptions discussed below, there are two (2) numerical limitations on the approval of new H-1B petitions each fiscal year:  (1) a general limitation of 65,000 per fiscal year, 6,800 of which are initially reserved for nationals of Singapore and Chile eligible for H-1B1 status; and (2) an additional 20,000 available for the approval of an H-1B petitions on behalf of foreign nationals who possess a U.S. Master’s degree or a higher U.S. degree.  The federal government’s fiscal year begins on October 1.  Employers may petition for new H-1B nonimmigrants up to 6 months ahead of time.  Due to the fact that each fiscal year the number of new H-1Bs exceed the 65,000 and 20,000 numerical limitations, a lottery is conducted by the USCIS each Spring to determine which petitions will be adjudicated under the applicable numerical limitations.  To be considered in the annual H-1B lottery, employers need to file an H-1B petition subject to the numerical limitations during the first 5 business days of April.

Certain employers are exempt from the numerical limitations on the approval of H-1B petitions.  Employers exempt from the numerical limitations include institutions of higher education, certain non-profit organizations affiliated with institutions of higher education, governmental research organizations, and non-profit research organizations.

Additionally, there are certain exceptions to the H-1B cap that apply to individuals.  These exceptions include: (1) certain individuals who have already been counted against the H-1B cap during the past six years; (2) individuals seeking an amendment, extension or transfer of their current H-1B petition; and (3) certain physicians who qualify for H-1B status under the CONRAD State 30 program or as recipients of federal government agency waivers of the J-1 two (2) year foreign residence requirement.

To consult with an experience HSPRD attorney regarding H-1B matters, please contact our Firm at (312) 239-7675 or info@chicagovisalawyers.com