The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation,” which is generally defined as a position that requires at least a Bachelor’s degree or the equivalent. The applicant must prove eligibility for the H-1B category with documentation of sufficient educational credentials, licensure, and/or experience.

Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).

Numerical H-1B Visa Limitations

Each year, Congress limits the number of new H-1B nonimmigrants admitted to the U.S.; it is currently capped at 65,000. An additional 20,000 H-1B visas are available for individuals with a U.S. Master’s degree or higher. Each year, USCIS accepts petitions beginning April 1 until the cap is filled. Petitions are subject to random lottery selection for review and adjudication. If the application is approved, the H-1B visa would be valid for use beginning October 1. Upon approval, the applicant must attend a visa appointment at a U.S. Consulate or Embassy abroad (unless Canadian).

Berardi Immigration Law represents several individual and corporate entities that are exempt from the H-1B numerical cap. H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Prerequisites to Filing an H-1B Petition

There are numerous obligations of an H-1B employer that must be considered:

  • The petitioner must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed.
  • A Labor Condition Application (LCA, or ETA Form 9035) must be certified by the Department of Labor (DOL) before the petition is submitted to USCIS.
  • The employer must also document compliance with the LCA requirements in a Public Access File (PAF). The LCA and PAF contain standard attestations that the employer must make, as well as basic wage and location information about the proposed H-1B employment, including rate of pay, period of employment, and work location.

Dual Intent

An individual may apply for permanent residency (green card) and hold H-1B nonimmigrant status simultaneously.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may attend school.

Period of Stay

An H-1B nonimmigrant may be admitted for an initial period of up to three years. Extensions may be granted, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

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The Berardi Difference

At Berardi Immigration Law, we pride ourselves on our robust H-1B visa practice. Our experienced team has successfully handled petitions for a diverse array of professionals across numerous industries, demonstrating our versatility and deep understanding of the H-1B process. We excel at navigating the complexities of H-1B applications, ensuring our clients receive expert guidance throughout their journey.

Our firm stands out for its adeptness in identifying cap-exempt opportunities, a crucial skill in today’s competitive immigration landscape. We routinely file H-1B petitions year-round for institutions of higher education, research foundations, and physicians, leveraging these cap-exempt categories to our clients’ advantage. Furthermore, our expertise extends to managing dozens of H-1B change of status applications, facilitating smooth transitions for professionals moving between jobs. At Berardi Immigration Law, we’re committed to providing seamless, efficient, and effective H-1B visa services tailored to each client’s unique needs.