Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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H1-B Cap Almost Used Up!

The most dreaded announcement from the BCIS for U.S. employers and their prospective specialty occupation employees that the 2005 H1-B cap has been reached is just around the corner. It is therefore risky, if not foolhardy, not to consult the services of a trusted law office to commence the processing of your H1B petition before it is too late.

The number of H1B visas was capped by Congress at 65,000 for fiscal year 2005. The past few years, although a larger number of visas were available (78,000 in fiscal year 2002 and 79,000 in 2003) the H1B visas were used up before the fiscal year ended. Year after year, there are a number of legislative activities to attempt to increase the allocation. Obtaining a statutory increase in H1B numbers, however, is not easy. We cannot emphasize enough the adverse effect of waiting too long. Reaching the cap means that no new H1-B changes of status or visas will be issued until October 2005.

What is so special about the H1B visa? The H1B program allows U.S. employers to hire highly educated foreign professionals on a temporary basis (initially for three (3) years which can be extended to another three (3) years). These foreign professionals allow U.S. employers to develop new products, create groundbreaking research, implement new projects, expand operations and create new jobs. U.S. employers also use the program to acquire special expertise in overseas markets, trends or distribution allowing U.S. businesses to compete in global market. Fact is, the H1B visa is an important tool to keep the U.S. economy vibrant.

H1-B applications, however, are not for everyone. The H1-B category is reserved for members of "specialty occupations". While most consultants will tell you that in order to qualify for an H-1B you need a Bachelor's Degree or its equivalent, there is much more to it than that. According to §214(h)(i) of the Immigration and Nationality Act, "specialty occupation" means an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

According to Title 8 of the Code of Federal Regulations § 214.2(h)(4)(iii)(A), in order to qualify as a specialty occupation, the employer (petitioner) must demonstrate at least one of the following: (1) a bachelor's degree or higher (or its equivalent) is normally the minimum requirement for entry into the position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

It is quite tricky to navigate through the H1B channels. Seeking the assistance of a lawyer you can trust will prove to be the best decision you can make under the circumstances .

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