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Q: What is the H-1B Visa?
A: The H-1B visa is a visa for foreign skilled professionals who wish to work in the US on a temporary basis in a ‘specialty occupation’. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a US Bachelor’s degree or its foreign equivalent. In addition to that, the Bachelor’s degree must relate to the intended field of occupation. In some cases, relevant work experience may be used as a substitute for the required bachelor’s degree if the individual does not possess such a Degree.
Q: When can the sponsor file for H-1B cap subject visa for the 2018 Fiscal Year?
A: The earliest filing date for the 2018 H-1B cap subject H-1B petitions is April 1st, 2017. For this year, since April 1st, 2017 is a Saturday, USCIS has announced that it will begin accepting H-1B cap petitions starting Monday, April 3rd, 2017.
Q: Can I just apply for the H-1B visa myself as I do not have a job offer from any employer?
A: No. You will need to have a job offer from an employer who will then petition for the visa on your behalf. The job offer must be for a position which normally requires the minimum a Bachelor’s degree or its equivalent for the position.
Q: What is the H-1B visa cap? Are all H-1B Visas subject to the cap?
A: The H-1B cap refers to the yearly numerical limit set by Congress for the number of foreign workers that can be granted H-1B visas. For each fiscal year, the quota for H-1B visas has been set at 65,000 (regular cap). Another 20,000 visas are set aside for foreign nationals who possess an advanced degree which includes a US Master’s degree or higher (advanced degree cap). If you are applying for the H-1B visa for the first time, you will be subject to this numerical limitation of 65,000 visas unless you come within the advanced degree cap or your petitioning employer is categorized as a cap exempt organization. In the past few years, the cap or quota was reached within the first week after the April 1st filing date. For example, in the 2017 Fiscal Year, USCIS reported that it received about 236,000 H-1B petitions. Because it was so oversubscribed, a lottery or random selection process was used to select from the petitions that were received.
Q: What kinds of petitions are cap exempt from the annual 65,000 H-1B visa cap?
A: If you already have the H-1B visa and you are just applying to extend the period of validity for the visa, or you’re a changing H-1B employers, you are exempt from the quota. Institutions of higher education or those that are related or affiliated nonprofit entities as well as nonprofit research organizations or governmental research organizations are all cap exempt. Further, if you have an advanced degree, there are an additional 20,000 visas available.
Q: What happens if my petition was not selected by the random selection process?
A: USCIS will return the petition package together with the filing fees. Your employer has the option re-file the H-1B petition for you for the next fiscal year (FY 2019).
Q: What are the current changes to the H-1B visa?
A: There are several bills introduced in Congress in 2017 which contain various proposals among others, to increase the minimum salary requirement to over $100,000 per year from the current salary of $60,000 and to eliminate the Master’s Degree exemption. These bills have not been passed in Congress yet. As such, at time of this publication, the H-1B program remains the same with no changes.
Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.
Sharlene Sharmila Richards is a licensed Immigration lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. You may contact her at telephone number 713-623-8088 or by email at firstname.lastname@example.org to schedule a free consultation to discuss your case.