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H-1B visa is a type of non-immigrant visa that allows U.S. employers to employ professionals in specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and arts are specialty occupations.

The U.S. employer has to file a petition on behalf of the foreign professional as the foreign professional is unable to file the petition for himself. The employer must file a Labor Condition Application (LCA) with the Department of Labor. The LCA attests that the H1B visa holder is being paid the prevailing wage for the work being performed and that employment of the foreign professional will not adversely affect the working conditions of similarly employed U.S. workers. The foreign professional must have an equivalent to United States bachelor’s degree. However, in certain instances where the applicant does not have such degree then he must show significant work experience in related field.

The annual H-1B cap is set at 65,000. The U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), set aside 6,800 H-1B numbers for workers from those two countries each fiscal year. Over and above the limit, another 20,000 petitions are set aside for petitions who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, all other petitions with master’s degree or higher will be counted against the annual cap of 65,000. Employers can petition as soon as April 1 and the beneficiary can start working from October 1.

First H-1B petition on behalf of the worker has a maximum validity for a period of three years and maybe extended to a total of six years. Thereafter 30 days are given within which the applicant must leave the country or apply for change of status. Extensions for more than six years may be granted in special circumstances.

H-1B cases can be filed under premium processing (Form I-907) along with a $1,250 fee. Under premium processing, USCIS is obligated to adjudicate the petition faster.

Spouses and unmarried children below the age of 21 years may apply for H-4 visa and stay with the H-1B visa holder in the United States. H-4 visa holders may not seek employment but can study without changing their status. H-4 visa holders may apply for change of status to H-1B visa if they have an employer to sponsor their visa.

We, at the Law Offices of Aditya Surti, LLC can help you in applying for change of status/ extension/adjustment of status to a different visa. To schedule your appointment contact us at 201-518-6642201-518-6642 (Jersey City Office), 732-750-1269732-750-1269 (Woodbridge Office). You can also email us at