What is the H-1B visa?

The H-1B visa is a non-immigrant visa that lets U.S. employers temporarily employ foreign workers in a specialty occupation. While the H-1B visa is the primary means by which employers hire foreign nationals in professional positions, it is not the only temporary work visa available.

Who Qualifies for an H-1B?

To file an H-1B petition for a foreign national worker, an employer generally must show the following:

• That the petition is for a foreign worker in a specialty occupation which requires a bachelor’s or higher degree as the normal minimum entry requirement for the position; OR
• That the degree requirement is common to the industry or the job is so complex/unique it can only be performed by an individual with a degree; OR
• That the employer normally requires a degree or its equivalent for the position; OR
• That the nature of the duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree; AND
• That the foreign national beneficiary has completed the required degree or possesses experience professionally evaluated to be equivalent to the required degree.

What is the Cap?

Congress has limited the number of H-1B petitions which may be accepted each year (“the H-1B Cap”).  Cap-subject petitions include new petitions filed for a person not currently in H-1B status.  The following types of H-1B petitions are not subject to the cap:

1. Petitions to extend the amount of time a current H-1B worker may remain in the US;
2. Petitions to change the terms of employment for current H-1B workers;
3. Petitions to allow current H-1B workers to change employers; and
4. Petitions to allow current H-1B workers to work concurrently in a second H-1B position.

In addition, certain types of H-1B petitions for new employment are not subject to the H-1B cap.  These include petitions filed for H-1B workers who are employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization.

Other Nonimmigrant and Temporary Work Visas

Depending on your situation, the H-1B visa may not be the best fit for your case. We can also assist with many of the other types of nonimmigrant visas for temporary work, including, but not limited to the following:

• B-1/B-2 visitor and business visas
• L-1 visas for intra-company transferees
• J-1 exchange and training visas
• O-1 visas for those with extraordinary abilities
• R-1 visas for religious workers
• The list goes on…

Minsky, McCormick & Hallagan has decades of experience in immigration law. If you have questions about what type of non-immigrant U.S. visa would best fit your case, feel free to call us at (312) 427-6163 or contact us online. Our office is located in downtown Chicago.