The H-1B classification is for individuals sponsored by companies working in occupations that require a bachelor’s degree or higher. The sponsored employee must hold the relevant degree (or its equivalent) that is necessary to work in the sponsored occupation.

The job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  • The degree requirement for the job 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
  • 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 or higher degree.

Under the H-1B classification the sponsoring employer is required to pay at least the prevailing wage for the occupation in the geographic area where the employee will work, as certified by the Department of Labor.

H-1B Cap: The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B entrepreneurs who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

The USCIS opens the cap April 1st of each year for employment beginning October 1st of that same year. Once the USCIS allocates all the petitions limited by the cap the USCIS ceases the acceptance of applications. Should the USCIS receive more than 65,000 petitions within the first five days of April the USCIS conducts a lottery to determine which petitions are reviewed.

H-1B Visa for Company Founders/Owners

It is possible for a U.S. Company to sponsor an H-1B visa for a founder and/or owner of the company. The factor that must be established is that there is a valid employer employee relationship that is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. Even the sole or majority owner can establish a valid employer-employee relationship but it will require additional documentation and possibly additional steps in the company hierarchy such as the establishment of a board of directors.

H-1B Visa for Early-Stage Employees

A successful H-1B visa does not require a minimum employment count at the U.S. company. Therefore, early stage employees are viable H-1B candidates. The U.S. company may need to include documentation evidencing that they are a real and operating enterprise and that they have sufficient specialty work for the employee.