The H-1B cap season is upon us.  USCIS will begin accepting H-1B petitions for temporary work status on April 1, 2017 for the 2018 fiscal year.  This visa category is available for workers wishing to perform services in a specialty occupation on a temporary basis.  A specialty occupation most often requires a bachelor’s or higher degree.  The H-1B petition must be filed by the employer.  Employers wishing to apply for foreign employee candidates this fiscal year should start the process now.

The H-1B cap allots for an annual numerical limit of 65,000 visas for each fiscal year.  An additional 20,000 visas are available for petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher.  H-1B petitions for beneficiaries who shall be employed at an institution of higher education, or its affiliated nonprofit entities, a nonprofit research organization, or a governmental research organization are not subject to the numerical cap. The spouse and unmarried children under 21 years of an H-1B beneficiary may obtain H-4 nonimmigrant status and are not subject to the cap. The cap further does not include H-1B workers already counted against the cap, workers requesting extensions of stay or a change of the sponsoring employer. Due to the extremely high demand of the H-1B visa classification, the cap will likely be consumed within the first week of the USCIS open filing date.

As part of the process, the employer must make certain attestations related to the foreign national’s employment.  Such attestations provide that the employer will pay the beneficiary a prevailing wage, which is no less than the wage paid to similarly qualified workers in the geographic area of employment. Employer attestations are made on a certification of a labor condition application with the Department of Labor. The certified labor condition application must be enclosed with the H-1B petition.

This popular classification is used commonly by U.S. employers seeking foreign professionals in various fields of discipline. For further information related to the H-1B process, please contact Dana Rifai.

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