The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum (with the exception of fashion models, who must be "of distinguished merit and ability".) Likewise, the foreign worker must possess at least a bachelor's degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.
The duration of stay is three years, extendable to six. An exception to maximum length of stay applies in certain circumstances:
Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H1B portability or transfer, provided the new employer sponsors another H1B visa, which may or may not be subjected to the quota. Under current law, H1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status each fiscal year (FY). Laws exempt up to 20,000 foreign nationals holding a master's or higher degree from U.S. universities from the cap on H-1B visas. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institutions may be exempt from the cap. Free Trade Agreements carve out 1,400 for Chilean nationals and 5,400 for Singapore nationals. Thus significantly more H-1B visas than the numerical cap are issued each year, with 117,409 in 2010.
A yearly "shortfall" in available visas arose beginning in the mid 2000s, despite a temporary increase in the yearly cap. The number had been increased to 195,000 in FY2001, FY2002 and FY2003. The Department of Homeland Security approved about 132,000 H-1B visas in 2004 and 117,000 in 2005.
The United States Citizenship and Immigration Services accepts H1-B visa applications no more than 6 months in advance of the requested start date, which is the start of the US fiscal year (October 1st of the previous year). Thus the first business day of April opens the H1-B visa application window.
For FY2008, the United States Citizenship and Immigration Services has announced that on the first day that H-1B visa applications would be accepted (Monday, April 2, 2007), it had already received 150,000 applications, more than twice as much as the 65,000 cap. Per agency rules, when the limit is reached on the first day of filing, all applications received on the first two days are put into a lottery to determine allocation of the available visas.
In 2008, the US 2009 fiscal year H-1B visa quota was reached one week into the application process. For FY 2010, USCIS announced on December 22, 2009 that the quota had been filled.. For FY 2011, final receipt date for new H1-B petitions was January 26, 2011. For FY 2012, as of August 15, 2011, only 25,300 petitions had been filed against the cap of 65,000. In 2008, a total of 276,252 visa applications (initial, renewals and extensions) were approved, and in 2009 that number decreased slightly to 214,271 and 110,367 initial H-1B visas were issued from consular offices . The American Immigration Lawyers Association (AILA), described the situation as a crisis, and the situation was reported on by the Wall Street Journal, BusinessWeek and Washington Post. Employers applied pressure on congress. Microsoft chairman Bill Gates testified in 2007 on behalf of the expanded visa program on Capitol Hill, "warning of dangers to the [U. S. economy] if employers can't import skilled workers to fill job gaps". Congress considered a bill to address the claims of shortfall, but in the end did not revise the program. The U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of U.S. workers.
The duration of stay is three years, extendable to six. An exception to maximum length of stay applies in certain circumstances:
Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H1B portability or transfer, provided the new employer sponsors another H1B visa, which may or may not be subjected to the quota. Under current law, H1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status each fiscal year (FY). Laws exempt up to 20,000 foreign nationals holding a master's or higher degree from U.S. universities from the cap on H-1B visas. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institutions may be exempt from the cap. Free Trade Agreements carve out 1,400 for Chilean nationals and 5,400 for Singapore nationals. Thus significantly more H-1B visas than the numerical cap are issued each year, with 117,409 in 2010.
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For FY2008, the United States Citizenship and Immigration Services has announced that on the first day that H-1B visa applications would be accepted (Monday, April 2, 2007), it had already received 150,000 applications, more than twice as much as the 65,000 cap. Per agency rules, when the limit is reached on the first day of filing, all applications received on the first two days are put into a lottery to determine allocation of the available visas.
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