U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B nonimmigrant visa applications for the 2012 fiscal year on April 1, 2011. As of July 1, 2011, the USCIS has received 18,400 petitions against the regular 65,000 available limit and 11,900 petitions against the 20,000 master's degree exemptions.

The H-1B Visa Program

H-1B visas allow employers in the U.S. to temporarily employ foreign workers for up to six years in fields that require "specialty occupations." Specialty occupations are jobs that "require theoretical or technical expertise in specialized fields." Some examples of such occupations include those in law, medicine, accounting, science, engineering and computer programming. The jobs generally require the employee to have the equivalent of a U.S. bachelor's degree and, for some jobs, appropriate licensure.

H-1B visas allow the worker and his or her spouse and children under 21 years old to live in the U.S. during the duration of the visa. An H-1B visa is a "dual-intent" visa, which means, unlike with other nonimmigrant visas, the government will not deny the H-1B visa if the employee intends to become a permanent resident.

H-1B Visa Caps

The law mandates a cap on the number of H-1B visas that the government issues every year. The cap for 2012 is 65,000. The government issues 20,000 additional H-1B visas to those employees who hold a master's degree or higher. USCIS does not count petitions by employers who are exempt from the cap - such as universities, non-profit organizations and government research organizations - against the cap. The cap also does not include renewal petitions that employers make on behalf of employees that are currently working on H-1B visas and that counted against the gap within the past six years.

Filing an H-1B Visa Petition

An employer cannot begin the H-1B visa process more than six months before the start date of the visa. To obtain an H-1B visa, an employer must:

  • Complete a Form I-129 petition, focusing special attention on the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement
  • Ensure each form has an original signature, preferably in blue ink
  • Enclose a check or money order for the appropriate fee amount
  • Attach the required additional documentation
  • Mail the petition to the appropriate Service Center for processing

The additional documentation that the employer needs to submit with the Form I-129 includes:

  • Labor Condition Application (form ETA 9035)
  • Evidence of the employee's educational background

Those seeking to obtain an H1-B visa should consult an experienced immigration attorney to ensure that they are meeting all the procedural requirements for the H-1B visa application.