H-1B Specialty Occupation

Available to foreign nationals coming temporarily to the U.S. to perform services for a U.S. employer in a specialty occupation and for whom the Secretary of Labor has determined and certified to the Attorney General that the prospective employer has filed a labor condition application.  A specialty occupation is one which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.  A foreign national without a bachelor’s degree may still qualify based on a combination of experience and education, or experience only.

Your employer must file a petition on Form I-129 along with supporting documents whether you are already in the U.S. or living abroad.  If in the U.S. on another status, the filing should request a change of status to H-1B.  If living abroad, once USCIS approves the petition, you will then apply for a visa at the U.S. embassy or consulate of the country where you are residing.

Requirements for H-1B Specialty Occupation

The specialty occupation must meet one of the following criteria:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for entry into the position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position 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; or
  • 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.

Requirements for Petitioner (Employer)

The petitioner (employer) shall submit the following with an H-1B petition:

  • A certification from the Secretary of Labor that the petitioner has filed a labor condition application
  • A statement that it will comply with the terms of the labor condition application for the duration of the foreign national’s authorized period of stay
  • Evidence that the foreign national qualifies to perform services in the specialty occupation

Requirements for Beneficiary (Foreign National)

The beneficiary (foreign national) must meet one of the following criteria:

  • Hold a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  • Hold a foreign degree determined to be equivalent to a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  • Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
  • Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Period of Stay

An H-1B nonimmigrant may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

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 workers 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.

USCIS accepts the petitions starting on April 1 for positions starting on October 1.  It is important to file within the first five business days of April so your petition will be entered into the lottery.  A lottery was held in 2013 for the first time in five years and it is expected that there will be a lottery in 2014.

Those beneficiaries who have had an H-1B petition approved previously, generally within the past 6 years, and have not used all of the six year period are not subject to the cap.

Change of Employer

For an H-1B beneficiary to change employers, the new employer must file a new petition for the beneficiary.  Under AC21, the beneficiary can start to work for the new employer once the petition is filed rather than waiting for approval.  There is a risk, though, if the new petition is not approved, that the beneficiary will then become out of status if already employed with the new employer.

Family of H-1B Visa Holders

Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.

Source: USCIS.gov