The H-1B nonimmigrant visa is widely utilized by U.S. employers seeking to hire foreign persons to fill positions requiring the services of a professional. H-1B classification may be granted to an alien who will perform services in a “specialty occupation”. A speciality occupation is defined as a job which requires the attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation. A prospective employer of an H-1B nonimmigrant must file a nonimmigrant visa petition with U.S. Citizenship and Immigration Service’s showing that the job offered is a “specialty occupation”, and that the foreign person is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation. An initial H-1B petition may be approved for a 3-year period, and renewed for an additional 3 years.

Before filing the petition for H-1B classification in a specialty occupation, a petitioning employer must file a Labor Condition Application with the U.S. Department of Labor attesting that it will pay the H-1B nonimmigrant a wage no lower than the actual wage paid to all other individuals at the employer’s job site with similar experience and qualifications for the specific employment in question or the prevailing wage for the occupation in the area for the employment, whichever is higher.

The H-1B Numerical Cap Limitation:

Effective October 1, 1990 the total number of persons classifiable as H-1B during a fiscal year was capped at 65,000. That figure was raised for fiscal years 1999 and 2000 to 115,000 and stood at 195,000 for fiscal years 2001 through 2003, returning thereafter to 65,000. Filed petitions reached the limit for fiscal year 2006 on August 10, 2005; for fiscal year 2007 on May 26, 2006; and for fiscal year 2008 on April 2, 2007, the very first day USCIS began accepting petitions. The agency now uses a computer-generated random selection process to determine which petitions subject to the numerical cap will proceed to adjudication.

Excluded from the numerical cap are H-1B beneficiaries coming to work for institutions of higher education, nonprofit research organizations, and government research organization, and also those involved in Department of Defense research and development projects. 1400 numbers are reserved to Chileans, and 5400 to Singaporeans under free trade agreements with those countries. A special exemption from exists for beneficiary’s who have a earned a master’s or higher degree from a U.S. institution of higher education. This exemption however is limited to 20,000 H-1B beneficiaries annually.

Australian citizens, who would otherwise be qualified for H-1B classification, may seek E-3 visa status. The E-3 visa is free of the H-1B numerical limitation, but rather subject to a separate annual cap of 10,500 numbers. The E-3 is able to apply for a visa directly to a U.S. consular officer without the need for a preliminary USCIS petition. The applicant must, however demonstrate that a Labor Condition Application has been filed with the U.S. Department of Labor, thus subjecting the E-3 employer to similar wage and working condition requirements applicable to the H-1B classification.