What is an H-1B Visa?
An H-1B is a specialty occupation visa for U.S. employers wishing to hire non-citizens. Since this is a "specialty occupation visa", the profile for which the employer wishes to hire a non-citizen must require a four year bachelors degree or more. The applicant for such a visa (the employee) must have such a degree, and if the applicant does not have a four-year bachelors degree, equivalent experience in the relevant industry may fulfill the four year requirement. Generally, a three year degree can be combined with three years of work experience to present a strong case for equivalence with a four year degree.
Are these visas given on a lottery basis or does anyone who apply for this visa get it?
Yes and no. H-1B visas have a general cap of 65,000 and an additional advanced degree cap of 20,000 for employees with a masters degree from U.S. universities. This means that only the first 65,000 and an additional 20,000 U.S. masters degree holders will get this visa. The filing period for these visas usually opens on April 1st, but since there is a huge demand for noncitizens, the cap fills out in a few days. Therefore, USCIS occassionally conducts a lottery to select the applicants who will get this visa. However, the application must be complete and properly submitted to be considered for this visa; mere selection in the lottery does not by itself entitle a visa.
Does the 65,000 and 20,000 cap apply to all H-1B applicants?
No. Congress created certain exceptions for H-1B visas for specific employers and employees. The cap exempt employers include universities in the U.S., non-profit affiliated or related organizations, and government research organizations. Additionally, most H-1B physicians with J waivers, H-1B workers seeking extension of status, and H-1B workers seeking change of employers are also excluded from this cap.
Additionally, H-1B petitions filed by institutions of higher education, a nonprofit entity related or affiliated to a higher education institution, or nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C), are also exempt from the cap:
Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a); Under the definition, an institution of higher education is one which:
admits students who have completed secondary education;
is licensed to provide education beyond secondary school;
provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
is a public or nonprofit institution; and
is accredited or has been granted pre-accreditation status by a recognized accrediting agency.
Nonprofit entity related or affiliated to a higher education institution: USCIS states that it is sufficient that a nonprofit entity is connected to an institution of higher education through shared ownership, control or be somehow attached to the higher education institution as a member, branch or subsidiary. Unless the non-profit employer is primarily devoted to research, or is formally affiliated with a university, it will not qualify as a cap-exempt H1B petitioner.
It is important to note that public secondary schools do NOT qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university. However, the exemption does cover certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the exempt institution, such as a physicians' practice group affiliated with and located at a university teaching hospital.
Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C). A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.
What is the procedure for obtaining an H-1B for my employee?
Brenman Immigration Law Firm frequently assists employers in filing for H-1B visas for their employees. This procedure includes submitting a Labor Condition Application to the Department of Labor, evaluating the credentials of the noncitizen employee through a reputed credentials evaluation agency, filing the Form I-129, I-129DC, and I-129H, and obtaining an Adjustment of Status if the employee is already present in the U.S. Feel free to schedule a consultation with one of our expert attorneys to learn more about H-1B visas.
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