Houston DWI Attorney Paul B. Kennedy

One of the most common and highly sought after U.S. work visas is the H-1B visa. Every year on April 1 the U.S. government makes available 85,000 new H-1B visas. Of the 85,000 spots made available every year, 20,000 are allocated to the “advanced degree cap exemption” (i.e. those with a U.S. master’s degree or higher) and 65,000 are allocated to the “cap subject category” (i.e. those with a bachelor’s degree).

The H-1B Visa is a nonimmigrant work visa that allows foreign professionals to work in the U.S. on a temporary basis in their professional occupation for an employer. Some examples of professions who use this visa are IT professionals, architects, engineers, individuals who work in finance or business, marketing and public relations professionals, accountants, researchers, professors, doctors, attorneys, teachers, counselors, fashion designers, graphic designers, etc. In order to qualify, you must have an offer of employment from a U.S. employer for work to be performed in the U.S.

Furthermore, you should be aware of the following 5 items when considering this visa:

1. Specialty occupation – The position you are attempting to fill must meet the requirement of a specialty occupation. The INA defines a specialty occupation as one requiring “a theoretical and practical application of a body of highly specialized knowledge,” and that the “attainment of a bachelor’s degree or higher” is usually a prerequisite to entry into the profession. One can show that a given occupation is a specialty occupation by meeting one of the following: a) A bachelor’’s degree or higher or its equivalent is normally the minimum requirement for entry into the particular position; b) The degree requirement of a bachelor degree or higher is common to the industry in parallel positions; c) The employer normally requires a bachelors or higher degree for the position; OR d) The nature of the specific duties of the particular position are so specialized and complex that it can either only be performed by an individual with a bachelors or higher degree or that knowledge required to perform the duties of the position are usually associated with a bachelor’s degree or higher.



2. Bachelor’s Degree – YOU as the potential employee must have a bachelor’s degree or its equivalent in the specialty occupation field or a related field. If you do not have a degree that is equivalent to a bachelor’s degree, you may be able to use work experience in the specialty occupation field to substitute education at a rate of 3 years of work experience for 1 year of education. Therefore, 12 years of work experience in a specialty occupation field may qualify one as having the equivalent of a bachelor’s degree.



3. There is a cap or max quota – Unless you are applying for a position at institution of higher education or a non-profit research organization or you have already been subject to the cap, you will be subject to the H-1B cap of either 65,000 if you only have a bachelor’s degree or 85,000 if you have a U.S. master’s degree. In years past the number of applicants far exceeded the number of H-1B spots available and a “lottery” had to be conducted in early April. However, as we’ve seen this year, there are still H-1Bs available as the cap has not been reached.



4. USCIS Filing Fees - The filing fees are comprised of the following: a) I-129 – $320; b) Fraud Fee – $500; and c) ACWIA Fee – $750 or $1,500 depending on the size of the employer. There is also a $1,000 premium processing fee if you’d like a response within 15 calendar days. There are certain restrictions on who is allowed to pay certain fees and also who is subject to certain fees.



5. Duration - The visa is typically issued for the maximum period of three years initially and is generally renewable for an additional three years bringing the total to six years. Under limited circumstances in connection with a green card application, you can extend the H-1B beyond six years.



The above is by no means exhaustive and is only meant to give you an idea of some things to think about when considering the marriage green card process.