H-1B Specialty Occupation
This visa classification allows foreign nationals to work in a specialty occupation for a U.S. employer. A “specialty occupation” is one where at least a bachelor’s degree in a specific field is required for employment. When employed in the H-1B status, the foreign national must be paid a wage deemed acceptable by the U.S. Department of Labor.
There is an annual limitation on the number of new H-1B classifications. The total number of H-1Bs are capped at 65,000 per year, with an additional 20,000 allocated for foreign nationals holding advanced degrees (master’s degree or higher). A randomized process known as the “H-1B Lottery” takes place each March to select the applications for review.
- An offer of full or part-time employment from an U.S. employer.
- The position offered qualifies as a specialty occupation, which is an occupation that normally requires a bachelor’s degree in a specific field.
- The H-1B beneficiary must holds at least a bachelor’s degree in a field appropriate for the position.
- The U.S. employer must agree to pay the wage required for the occupation and make sure other employees at the workplace are not adversely affected.
Qualifying a position as a specialty occupation is the most important part of the H-1B petition.
A “specialty occupation” is defined as:
“An occupation that 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 entry into the occupation in the United States.” INA §214(i).
In other words, for a position to qualify as a “specialty occupation” it must be the type that requires at least a bachelor’s degree in a specific course of study to perform.
The adjudicator considers the totality of evidence submitted to determine whether a position qualifies as a specialty occupation. The following are some key factors considered in the adjudication process.
- Whether the degree required by the position is the normal standard for the occupation.
- Whether the degree required by the position is common among similar organizations.
- Whether if the position is more complex or unique than related occupations such that the performance of its duties requires at least a bachelor’s degree in a specific specialty.
- The hiring practices of the employer for the same or substantially similar positions.
- Whether the position requires a higher level of knowledge than normally required in the occupation.
Smaller organizations may be questioned on the need for the H-1B employee’s services. Therefore, it is important for small employers to provide additional explanation and documentation on the nature of its business and the current state of its operations.
The fact that the job offered qualifies as a specialty occupation is not enough. The H-1B beneficiary must also meet the requirements of the position. Generally, this means the beneficiary must possess: (1) a bachelor’s or higher degree in the specialty required for the occupation; (2) a license required for the occupation (if one is required); or (3) both.
The degree held by the beneficiary should be related to the occupation. In the event the beneficiary’s field of study is not directly-related, specific course work will need to be evaluated to determine his or her qualifications.
Labor Condition Application
A Labor Condition Application (LCA) must be submitted by the sponsoring employer for each H-1B petition. The LCA is a certified form where the sponsoring employer makes a series of promises to the government. These promises include:
- The H-1B beneficiary will be paid the required wage (the higher of the prevailing wage or actual wage);
- The working conditions for the H-1B beneficiary that will not adversely affect other employees similarly employed;
- That there is not a strike or lockout in the occupational field the H-1B beneficiary is employed at the place where he or she would be employed;
- That a notice of the filing of the LCA has been properly posted.
It takes the Department of Labor up to seven (7) days to certify the LCA. Supporting evidence is not required at this stage but the employer will need to keep certain documents on filed should the government decide to inspect in the future.
Length of Stay
The H-1B status is issued in three-year increments and can last for a maximum of six (6) years. The foreign national can spontaneously pursue permanent residence while holding H-1B status. Continued extensions for H-1B status beyond the six-year maximum period is allowed until the foreign national obtains permanent residence.
Dependent Family Members
Dependent spouses and minor child of H-1B nonimmigrants may obtain H-4 nonimmigrant status. Spouses under H-4 status would not be eligible for employment authorization except in limited circumstances.
The H-1B petition is filed by the U.S. employer. A Form I-129 Petition for Nonimmigrant Worker with H Supplements are submitted to the U.S. Citizenship and Immigration Services along with supporting documents establishing eligibility. The H-1B petition can be processed relatively quickly through the premium processing service offered by USCIS (if available). Cap-Subject H-1B petitions are subject to a lottery process prior to filing with USCIS.
If the alien beneficiary is lawfully admitted in the United States, the H-1B petition can request a change of status. This allows the alien to assume H-1B status upon the petition’s approval. If the beneficiary is overseas, he or she would apply for an H-1B visa at the U.S. consulate before entering the United States.