There is a regular cap and master’s cap for H-1B visas for professionals in specialty occupations.
What is an H-1B visa?
The H-1B Non-Immigrant Work Visa may be issued to foreign nationals seeking temporary work in a “specialty occupation,” which requires the skills of a professional. Congress issues 65,000 H-1B visas every year, with an additional 20,000 for those with master’s degrees or higher. Canadians in certain occupations should consider the TN visa if the H-1B cap is full and if the applicant falls within one of the listed occupations.
H-1B visa criteria
The job must meet one of the following criteria to qualify as a specialty occupation under an H-1B visa:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered
- The degree requirement for the position being offered is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position being offered
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher (i.e. Master’s, MBA, J.D., PhD., etc.)
To qualify to accept a job offer in a specialty occupation, the employee must meet one of the following criteria:
- Have completed a U.S. bachelor’s degree or higher required by the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state license, registration, or certification which authorizes the beneficiary to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty
H-1B Master’s Cap for those with graduate degrees
In addition to the annual 65,000 H-1B visas, Congress has allotted an additional 20,000 H-1B visas for individuals with advanced degrees (M.D., J.D., MBA, Ph.D. etc.). So foreign nationals with the equivalent of a U.S. medical degree, law degree, or any other graduate degree are eligible to be considered for one of the 20,000 Master’s Cap visas beyond the 65,000 regular cap.
H-1B visas for fashion models
Fashion models can also work in the United States on an H-1B visa. While the H-1B visa generally requires the beneficiary to have a bachelor’s degree or higher, a fashion model under an H-1B does not need to have such a degree. Instead, the requirements for a fashion model under an H-1B visa are that he/she is of “distinguished merit or ability.” Stated simply, the fashion model must be prominent, is nationally or internationally recognized, and has reached a high level of achievement in the field of fashion modeling. Thus, the requirements for a fashion model under an H-1B visa are very different than “specialty occupations,” where educational level and job duties are more of a determining factor. Instead, the requirements of an H-1B for fashion models are more like those needed for a beneficiary of extraordinary ability under an O-1 visa.
H-1B visas for entrepreneurs
Foreign entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H-1B visa, if they can demonstrate that the company has the independent right to control their employment. This is a departure from the traditional H-1B requirements in which the employer must exercise a right of control over an employee. Maximilian Law has successfully obtained H-1B visas for entrepreneurs who own their own business and who otherwise would not have been able to obtain this visa. As an alternative, foreign entrepreneurs looking to start a U.S. business should also consider an E-2 treaty investor visa.
H-4 Visas for H-1B Dependents
H-1B visa holders can bring their spouses and minor children to the United States under H-4 visas. As of May 2015, spouses of H-1B workers in H-4 status can obtain employment authorization if an I-140 petition has been approved or if a second H-1B extension has been filed under AC21.
Our H-1B Specialty Occupation Visa Legal Services
Our services include: assessing with the employer whether the proposed occupation meets the requirements for an H-1B visa; assessing whether the proposed employee meets the criteria for an H-1B visa; preparing the formal petition and accompanying documentation; and obtaining an H-1B stamp from a consulate abroad (if necessary).