The H-1B visa is the most common non-immigrant visa category utilized by U.S. employers to sponsor employees to work in the United States. H-1B status can be obtained for total period of up to six years, though extensions beyond that are available to those who reach a certain point in the green card process.
To qualify for an H-1B visa, the employee needs to possess at least a bachelor’s degree or its equivalent, and the position must qualify as a "specialty occupation," meaning that the job must also require skills and technical knowledge consistent with obtaining at least a bachelor’s degree.
Employers are subject to many attestation requirements regarding wages, benefits packages, and public notice and recordkeeping requirements to participate in the program. In addition, the employer must pay the higher of either the actual wage it pays its other similarly situated U.S. workers, or the prevailing wage as determined by the Department of Labor for that specific occupation and geographic area.
While the H-1B is the most common visa used to sponsor highly skilled workers, it is subject to a strict congressionally mandated quota. Every year new H-1B visas are limited to 65,000 per year, with an additional 20,000 set aside for those who have obtained a master’s degree or higher from a U.S. institution. The application period for cap-subject petitions opens on April 1 of every year, with a start date of the following October 1. The current economic climate, with relatively strong job growth in sectors requiring highly skilled workers, has resulted in the H-1B cap being oversubscribed. In Fiscal Year 2017, for example, USCIS received 236,000 applications in the first five days of filing, resulting in a lottery to select those that meet the quota.
Some individuals are exempt from the quota, including those who are changing employers from one cap-subject employer to another, and those extending their H-1B status. Individuals coming back to H-1B status who have been counted against the cap in the past six years may also qualify for an individual exemption from the H-1B cap, as do J-1 physicians who were granted a Conrad waiver of the two year home residency requirement.
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