H Visas: Specialty Workers

H-1B Visas: Planning for Success

H-1B visas are one of the most desired visas in the United States, as they provide rapid approval, employment and travel permission for periods of up to six years, and in some cases even longer. They are currently capped at 65,000 annually. However there is an advanced degree exemption that makes 20,000 more H-1B visas available each year to foreign workers who hold a Master’s or higher level degree from a U.S. academic institution. There are also certain employer exemptions for occupations that do not count against the 65,000 cap.

H-1B U.S. Work Visa Program

The H-1B visa program allows U.S. employers to bring persons in “specialty occupations” and their immediate family members into the United States on non-immigrant visas.

It is also possible, in certain circumstances, to sponsor yourself, or “self- petition” for an H-1B visa. In those cases, we have successfully created business entities for entrepreneurial clients to employ themselves as H visa holders. This strategy is particularly helpful for people from countries that do not qualify for E visas.

These “specialty occupations” are jobs that require a U.S. bachelor’s degree or its equivalent. It is also possible to successfully argue work experience or its equivalent, to the needed educational degree.

The H-1B visa is valid for an initial period of three years and up to six years total, with an extension. Further extensions are possible in connection with a pending immigrant petition, as well as the possibility to recapture additional time to offset time spent outside of the U.S.

Petitions for Change of Status

The H-1B visa is so coveted and in demand because it allows for “dual intent.” While a non-immigrant visa normally requires the intent to remain in the United States only temporarily, an H-1B visa’s “dual intent” will allow you to apply for lawful permanent residence while keeping your non-immigrant status. It allows you to have the intention of remaining in the United States temporarily and the intention of seeking to stay in the United States permanently as a lawful permanent resident at the same exact time.

How difficult is it to obtain an H-1B visa?

The key to success is in making the argument that the job meets the criteria of requiring a bachelor degree or its equivalent. We possess that experience to make your application successful.

It should be noted that the current annual cap on the H-1B category is 65, 000. Not all H-1B applications are subject to this annual cap. Please note that up to 6,800 visas may be sat aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S. Singapore Free Trade agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

Consider this fact: the United States Citizenship and Immigration Services (“USCIS”) begins accepting applications on April 1st for H-1B visas for the following fiscal year. By April 8th, 2008, the cap for fiscal year 2009 had already been reached. In fact, the number of applications was nearly double the actual number of visas that could be granted. “Exemptions” were also overwhelmed by the volume of applicants.

Guiding the Way to America Since 1983

To learn more about the H-1B visa or how our lawyers can help you plan for and prepare a successful application, call our offices in New York City at 212-401-4040 or reach us Toll-Free at 800-244-5266. You can also contact us online.


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