Home > About BNE > Press Room > 2009 Archive > February > Visa for Specialty Occupations

H-IB Visa for Specialty Occupations

The H-1B program is utilized by U.S. organizations to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a “specialty occupation”. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specialty area  (e.g., sciences, medicine and health care, education, biotechnology, or business).   U.S. Citizenship and Immigration Services (USCIS) allocates 65,000 H-1B visas per fiscal year.  This is known as the “H-1B cap”, and it is generally reached soon after the filing window opens.
Due to the large number of applicants for the H-1B program, it is advisable to start preparing for filing now.

Certain applicants will be exempt from the H-1B cap.  Individuals who earned a Master’s degree or higher from a U.S. institution have  a separate quota of 20,000.  USCIS also exempts applicants from the annual cap if the employee will be working at:
·       An institution of higher education (e.g. college or university);
·       A nonprofit organization related to or affiliated with an institution of higher education (e.g. a hospital affiliated with a university);
·       A nonprofit research organization; or
·       A governmental research organization.
Petitions for current H-1B workers (transfers, renewals, and amendments) do not count towards the mandatory H-1B cap, and USCIS will continue to process these applications.
The maximum duration of stay for a foreign worker in H-1B status is six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved.  Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

April 1, 2009  is the first day petitions may be received for an October 1, 2009 start date (FY2010).

Petitions for the FY 2010 cap received before Wednesday, April 1, 2009 will be rejected by USCIS.  Further, if a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.  It is therefore critically important to plan ahead in preparing these applications.

The Law Office of Rosanna Berardi, PC, is a full-service immigration firm.  Please contact our Buffalo or Toronto offices at 1-877-721-6100 if you have questions about the H-1B program, or visit our website at www.berardiimmigrationlaw.com for a comprehensive list of our services.