LPY Law Group

H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is considered as a “U.S. employer” for H-1B purposes if its U.S. entity meets the following requirements: 1) it engages a person to work within the U.S.; 2) it has the authority to hire, pay, fire, and supervise employees; and 3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN).

No, current H-1B workers who have used the H-1B quota are not subject to the annual cap.

Yes. As long as you have obtained an advanced degree in the U.S., you can use the additional 20,000 H-1B visas for advanced degree professionals.

The earliest date for U.S. employers to file new H-1B petitions under the 2010 FY cap is April 1, 2009.

No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced degree in the U.S.

The new H-1B visas available for FY 2010 are 65,000. In addition, 20,000 foreign workers who obtained advanced degree in the U.S. are exempted from the 65,000 cap.

It is not enough that an employer requires bachelor’s degree for a specific position. Pertinent laws set some objective standards for determining whether a specific occupation requires a bachelor’s degree for entry into the occupation. For more information regarding the standards to determine the requirement of bachelor’s degree, please read our special section on Standards to Determine Specialty Occupation.

While some occupations are clearly “specialty occupations” as defined by laws and regulations, others are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such as computer programmer, general manager, librarian, consultant, designer, etc., determination of “specialty occupation” is an extremely complicated process and many factors should be considered. We suggest that H-1B petitioners or beneficiaries consult with an experienced immigration attorney regarding their specific cases.

When determining whether a specific position is a “specialty occupation”, the USCIS will look into the job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. For more information regarding the standards to determine specialty occupation, please read our special section on Standards to Determine Specialty Occupation.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree or its equivalent for entry into the occupation in the U.S. Examples of specialty occupation include, but are not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, etc.

The H-1B is a nonimmigrant classification granted to a foreign worker who is employed temporarily in a specialty occupation, or a fashion model of distinguished merit and ability. For a Step by Step H-1B Processing Flowchart, please click Here.