Immigration Law: H-1B Rules And Regulations

H-1B visa is for a person in a specialty occupation coming temporarily to the U.S. Specialty occupation is defined as requiring theoretical and practical application of a body of highly specialized knowledge. The proposed regulations for an H- 1B nonimmigrant visa accurately state to have a “specialty occupation” to indicate the direct relationship between the duties of the position and the degree of the specified work fields. Another requirement is a bachelor’s degree in a specific specialty in the process of filing an H-1B. The regulation frequently defines the term “employer-employee relationship,” alluding to the control of the employee’s “right to control” the work the employee participates in. The USCIS takes a look at whether the employer can exercise that right to control. The regulations set a 1-year max term for a reasonable period when an H-1B beneficiary will be working at a third-party worksite. 

There is a cap to the amount of H-1B visas that are given out every year. The capper year is 65,000, the specific categories that cannot be counted towards that cap are listed in the following:

• Persons (up to 20,000) who possess a U.S. master’s degree or higher
• Beneficiaries of employment offer at institutions of higher education, for example:
  • Family relation
  • Affiliated non-profit organizations
  • Non-profit research organizations
  • Government research organizations

H-1B applicants may be approved for up to 3 years with a possible max term of 6 years, but not exceed the period of validity of the labor certification application as previously stated above. H-1B status might be extended in a one-year increment beyond the six-year limitation if a labor certification, immigrant petition for alien worker, or employment-based application to adjust the level that was filed at least 365 days before the expiration of the H-1B status. Another route to note is that a person who remains outside of the U.S. for one year may begin the six years again. Spouses and children accompanying an H-1B visa holder will be granted H-4 visas.

Fees Associated With H-1B Applications

There are four types of fees to file an H-1B petition, and they are as follows:

1. registration $10
2. Standard $460.00 petition fee (and if the employee is abroad, additional costs in the US. Embassy or Consulate)
3. An additional fee of $1,500.00 (or $750.00 if the employer has less than 25 full-time employees)
4. Fraud prevention and detection fee of $500.00
5. If an employer has 50 or more employees and more than 50% of the employees have H-1B or L-1 status, the employer must pay a fee of $4,000.00 in addition to other expenses.

Please note that this article does not constitute any legal advice. We simplified the law to read regulations in a more manageable scope. If you want to obtain an H-1B status, call our experienced H-1B attorney at 602-687-2010 or schedule your consultation online.