H-1B Specialty Occupations

H-1B (Temporary Professional Workers) Visa

What is the H-1B visa?

The H-1B visa is a non-immigrant visa that permits U.S. employers to temporarily employ foreign workers in specialty occupations requiring the use of highly specialized knowledge in science, engineering, computers, and other areas.

What are the requirements for an H-1B visa?

  • You must have an employer-employee relationship with the employer petitioning for you.
  • Your job must be a “specialty occupation,” which typically means that it requires at least a bachelor’s degree, or is so complex and unique that a bachelor’s degree is usually necessary.
  • Your job must be in a specialty occupation that relates to your field of study.
  • You must be paid either the actual or prevailing wage – whichever amount is higher.
  • An H-1B visa number must be available at the time that you file your petition.

What strategic considerations should I keep in mind?

  • The H-1B visa has an annual “cap” of 65,000 visas per 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.
  • H-1B workers who are petitioned for or employed at an institution of higher education, a nonprofit research organization, or a government research organization are not subject to the “cap.”
  • H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the “cap.”
  • Cap numbers are used up quickly, so you should plan in advance if you plan to file for an H-1B visa that is subject to the annual cap.
  • You can file your H-1B petition up to 6 months before the start date, which is generally April 1 for an October 1 start date.

In order to be considered a specialty occupation, the position must meet the following requirements:

  • Theoretical and practical application of a body of highly specialized knowledge;
  • Attainment of a bachelor’s degree or higher or its equivalent in the specific specialty; meets one of the following criteria:
    • 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 Bachelor’s + 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.
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Professions that may qualify for an H-1B visa run a broad spectrum. Some professionals with progressively responsible and lengthy experience may qualify for the H-1B even though they have not earned a Bachelor’s degree.

This visa does not require maintenance of foreign residence and approval of an application for labor certification. The filing of an immigrant visa also does not prevent the applicant to be granted an H-1B visa or an extension of such visa.

How long can I stay in the US on this visa?

The H-1B visa holder may stay in the U.S. for the duration of the petition approval from three to six years. In some instances, the H-1B visa holder may qualify for an H-1B extension beyond the six-year maximum.

Can I apply for a Green Card while on this visa?

Yes, the H-1B visa is a dual intent visa.

 
H-1B Portability and Change of Employment

The American Competitiveness in the 21st Century Act (AC21) allows an H-1B worker to change employers and begin working for the new employer as soon as the new employer has filed an H-1B change of employer petition. It is important that the H-1B worker be in valid H-1B status when switching employers. Also, the H-1B worker must work in the same occupation.