The H-1B Specialty Occupation classification allows U.S. employers to temporarily employ foreign professionals in positions classified as specialty occupations that require theoretical or technical expertise. It is an employer-sponsored nonimmigrant classification in which the employer files an H-1B petition on behalf of the prospective H-1B employee. The H-1B program is widely utilized by employers to fill positions that require specialized knowledge in performance of the position’s duties. Obtaining an H-1B classification can be a complex process, requiring adherence to strict timing and the demonstration of eligibility by both the sponsoring employer and the prospective employee.

1. What is the H-1B “Cap”?

The H-1B Cap signifies the maximum number of H-1B visas permitted to be issued for each federal fiscal year (FY). The fiscal year starts on October 1st and concludes on September 30th of the following calendar year. Present regulations establish the annual cap at 65,000 H-1B visas nationwide, with an additional allocation of 20,000 for individuals with an advanced degree from a U.S. institution of higher education.

2. The H-1B Lottery

Because of the annual cap of H-1B visas, for a foreign worker to initially obtain H-1B classification, they must first enter into the H-1B lottery and be selected to become eligible to have an H-1B petition filed on their behalf by a sponsoring employer. Once the petition is approved, the foreign worker will be counted against the cap and may begin employment as early as October 1st.

For eligibility to file an H-1B petition for a foreign worker, the prospective employer must register the foreign worker (the beneficiary) into the H-1B lottery system. The H-1B lottery, conducted by the United States Citizenship and Immigration Services (USCIS), is a process used to randomly select individuals to apply for H-1B classification. USCIS conducts a randomized lottery to select which registrations will be eligible to have an H-1B cap-subject petition filed for the upcoming fiscal year. If an individual is selected in the lottery, an H-1B cap-subject petition can be filed on their behalf by the employer. The cap-subject petition can only be filed within the USCIS’ designated filing window which is typically from April 1st to June 30th.

3. Key Dates and Considerations for Initial H-1B Cap-Subject Petitions

Employment in H-1B positions begins as early as October 1st of each year of the initial H-1B cap-subject petition’s filing, which marks the start of the fiscal year for USCIS. Beneficiaries may commence the H-1B employment on October 1st if the petition is approved prior to the October 1st date. If the petition is not approved by October 1st, the H-1B employment cannot commence until USCIS approves the petition.

Keeping up with essential dates in the H-1B season is crucial for both employers and skilled foreign workers to ensure timely preparation and submission of the H-1B cap-subject petition. Missing deadlines can result in exclusion from the lottery process or filing of an H-1B petition. Therefore, staying informed about registration opening and closing dates, lottery selection timelines, filing windows, and USCIS announcements is imperative.

The following are key milestones for H-1B cap-subject petitions based on past USCIS announcements and registration patterns:

Phase	Key Dates	Steps to Take
Registration Window	Early March (window open for about 14 days)	Employers register beneficiaries for the H-1B lottery.
Selection and Announcement	End of March	USCIS makes its selections and announce the selections have been made.
Filing Window	April 1 – June 30	Submit H-1B petitions after selection.
Employment Start Date	October 1	Earliest time approved H-1B workers may commence employment.

*Dates are based on USCIS’ previous years’ H-1B registration and filing schedule.

4. Are There Ways to be Exempt From the H-1B Cap?

There are certain categories of employers whose H-1B petition filings will not be counted against the H-1B Cap and as such do not need to register their employees in the H-1B lottery. Entities such as nonprofit research organizations and government research organizations are exempt from the Cap when filing petitions for H-1B beneficiaries. Additionally, institutions of higher education or related or affiliated nonprofit entities are exempt from the Cap as well. These cap-exempt employers can submit an H-1B petition to the USCIS at any time during the year, without being restricted by the fiscal year limit.

5. How Long Does it Take USCIS to Process H-1B Cap-Subject Petitions?

The processing time for H-1B petitions can vary depending on various factors such as USCIS workload, petition type, and service center. Typically, petitioners can expect to wait around 2 to 3 months for an approval after filing an H-1B petition. Premium Processing Services are available for an additional fee, which can expedite the processing time to 15 business days.

6. Requirements for Employers (Petitioners)

When obtaining the H-1B classification, there are certain obligations and requirements incumbent upon the petitioner—the employer seeking to sponsor an H-1B for a foreign worker. These include:

• Paying the Required Wage: Employers must pay the offered wage to the H-1B beneficiary, determined by the prevailing wage rate for the occupation in the geographic area. This requires certification of a Labor Condition Application (LCA) from the Department of Labor.
• Offering a Bona Fide Job Opportunity: USCIS mandates that employers offer a bona fide job opportunity with sufficient specialty occupation work available for the duration of the H-1B status.

7. What Are the Fees Associated with Filing an H-1B Petition?

Fees associated with the H-1B application process play a significant role in the overall cost incurred by employers seeking to sponsor foreign professionals. There are several fees associated with filing an H-1B petition, including:

• Petition Filing Fee: This fee is required for the filing of the H-1B petition.
• Fraud Prevention and Detection Fee: Employers must pay this fee to support efforts to prevent and detect fraud in the H-1B program.
• American Competitiveness and Workforce Improvement Act Fee: This fee helps fund programs that benefit U.S. workers.
• Asylum Program Fee: Employers are also responsible for paying this fee, which supports the asylum program.

Fees associated with the filing of an H-1B petition are to be paid by the employer.

8. Requirements for Employees (Beneficiaries)

The foreign worker, also known as the beneficiary, must meet certain qualifications and criteria to be eligible for an H-1B status. This primarily includes:

Educational Qualifications: The beneficiary must have the necessary educational credentials or equivalent work experience relevant to the H-1B position. Typically, this means holding at least a bachelor’s degree in a field of study relevant to the H-1B position.

• If the beneficiary does not have at least a bachelor’s degree

Alternative Qualifications: Combinations of education, training, and professional experience may also be considered qualifying if the beneficiary does not have a bachelor’s degree. An evaluation should determine that the beneficiary has the relevant specialized knowledge needed to perform the duties of the H-1B position.

• If the nature of an occupation requires additional qualifications, such as licenses

Licensing Requirements: State laws may require specific licenses for certain professions or industries. Beneficiaries must comply with these regulatory requirements, unless an exemption from licensure is permitted, to qualify for the H-1B position.

9. What Positions Qualify for H-1B?

Central to the H-1B program is the notion that the employer is seeking to hire a foreign worker in a “specialty occupation.” Specialty occupation positions are those that entail duties and responsibilities that mandate specialized knowledge and expertise. A position qualifies as a specialty occupation if it is one that require theoretical and practical application of a body of highly specialized knowledge, and which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States. H-1B classification is available for individuals working in a wide variety of professional occupations that can meet the specialty occupation criteria. However, employers must demonstrate the qualification of positions as a specialty occupation for prospective employees to receive H-1B classification.

10. H-1B Status Validity and Extensions

Once an individual is granted H-1B status, it is essential to understand the validity period of this status and the possibility of extending it. The following are critical timeframes to be aware of:

• Initial Validity: The initial validity period of H-1B status is determined by the duration specified in the approved petition, which can be up to three years initially.
• Extension: H-1B status can be extended beyond the initial validity period, allowing foreign professionals to continue working in the United States for an additional period of up to three years.
• Maximum Duration: The maximum duration of stay in H-1B status is typically six years. However, certain individuals may be eligible for extensions beyond the six-year limit under certain circumstances, such as having an approved immigrant petition (Form I-140) or pending adjustment of status (Form I-485) for a green card.
• Grace Period: Foreign professionals in H-1B status are granted a 60-day grace period following the end of their authorized validity period. During this period, they may remain in the United States to prepare for departure, seek new employment, or change their status to another nonimmigrant classification.

Understanding the validity period and extension process for H-1B status is crucial for employers and employees to ensure compliance with immigration regulations and maintain lawful status in the United States.

Navigating the H-1B Process Successfully

The H-1B process represents a critical pathway for both employers and skilled foreign professionals seeking employment opportunities in the United States. Navigating the H-1B process successfully requires dedication, collaboration, and a commitment to compliance. By adhering to regulatory requirements and embracing the opportunities presented by the program, stakeholders can leverage the H-1B as a catalyst for innovation, growth, and talent acquisition in the United States.

Should you have any questions regarding the H-1B Specialty Occupation Worker Program, please feel free to reach out to our team at Meng Law Group. You may also contact us via phone at 626-339-9363 or email us directly at info@menglawgrp.com.