H-1B Visas for Specialty Occupations, DOD Cooperative Research & Development Project Workers, and Fashion Models

The H-1B nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.

“Specialty Occupations” for H-1B Visas

A “specialty occupation” is defined as an occupation that requires a 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 United States.

For a job to qualify as a “specialty occupation,” it must meet one of the following criteria:

• The job requires a Bachelor’s or higher degree, or its equivalent
• 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

Most specialty occupations fall under the H-1B Visa classification. The H-1B2 Visa classification is specific to DOD Researchers and Development Project Workers, and the H-1B3 Visa classification is specific to fashion models.

Both employers and employees must meet certain criteria in order to qualify for an H-1B Visa.

Employee Requirements for an H-1B Visa for Specialty Occupations

To qualify to accept a job offer in a “specialty occupation,” you must meet one of the following criteria:

• Have completed a US bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
• Hold a foreign degree that is the equivalent to a US Bachelor’s or higher degree in the specialty occupation
• 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
• 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
• If the foreign worker is a fashion model, the model must be of distinguished merit and ability.

Employer Requirements for an H-1B Visa for Specialty Occupations

Prospective employers of specialty occupations and distinguished fashion models must obtain a certification of an LCA from the USDOL. The application requires the employer to attest that it will comply with the following labor requirements:

• The employer will pay the beneficiary a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working
• The employer will provide working conditions that will not adversely affect other similarly employed workers
• At the time of the labor condition application, there is no strike or lockout at the employer’s place of business
• Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business

This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.

The H-1B Visa Cap

The H-1B Visa has an annual numerical limit “cap” of 85,000 visas each fiscal year. The following beneficiaries are exempt from this cap:

• The first 20,000 petitions filed on behalf of beneficiaries with a US Master’s degree or higher
• H-1B Visa workers who are petitioned for or employed at:
  • An institution of higher education or its affiliated or related nonprofit entities
  • A nonprofit research organization
  • A government research organization

Applying for the H-1B Visa

Once the employer has successfully filed the LCA application, they must file a Form I-129 (Petition for a Nonimmigrant Worker), along with a fee of $460, on behalf of the employee.

Applying for “Capped” H-1B Visas

In 2020, USCIS implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each beneficiary.

Under this process, prospective petitioners who are seeking to employ H-1B workers subject to the cap (the employers, also known as registrants) and their authorized representatives complete a registration process that requires only basic information about the prospective petitioner and each requested worker. An initial registration period is open for a minimum of 14 calendar days each fiscal year. The H-1B selection process will then be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Selections take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens.

How long does the process take? The time that it takes to process an H-1B Visa petition is generally around three months. Because processing times are determined by caseload and often fluctuate throughout the year, it is important to check current processing times to get an accurate idea of how long it will take to process your H-1B visa petition.

Can the process be expedited? USCIS offers “premium processing” via Form I-907 for those that need an expedited decision in their case, which guarantees a decision in your case within 15 calendar days with the payment of a premium fee which costs $2,500.

FAQs about H-1B Visa

Can my spouse and children come with me to the US? Any spouse and children under the age of 21 may accompany or follow an H-1B Visa holder as an H-4 nonimmigrant.

Can my spouse work? Spouses and other family members in the H-4 Visa nonimmigrant classification may not engage in employment in the United States.

How long can I stay in the US on an H-1B Visa? As an H-1B Visa nonimmigrant, you may be admitted for an initial period of up to three (3) years. That time period may be extended, but generally cannot go beyond a total of six (6) years, though some exceptions do apply under the American Competitiveness in the Twenty-First Century Act (AC21).

How do I extend my H-1B Visa? An H-1B Extension is obtained the same way as the initial H-1B Visa was obtained, by filing Form I-129. USCIS will review the request for an H-1B Extension with the same scrutiny as the initial H-1B Visa petition, so it is important that it be handled with the same standard of care.

Can I change employers on an H-1B Visa? An H-1B Visa holder can change employers at any time. The new prospective employer must first file for an H-1B Visa change of employer by filing Form I-129, the same way as the initial H-1B Visa petition and must be done with the same attention to detail. The H-1B Visa holder is able to begin working for the new employer as soon as USCIS receives the I-129 petition for a change of employer.