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.
What is a “specialty occupation” as defined for an H-1B Visa?
“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.
How do I qualify for an H-1B Visa?
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.
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.
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.
We Can Help You Apply for H-1B Visas
At Richards and Jurusik Immigration Law, we focus our legal practice on the Immigration and Nationality Laws of the United States. Our specialized practice has allowed us to gain particular expertise with the preparation, filing, and successful adjudication of H-1B Visa petitions, extensions, transfers, and H-4 dependent petitions for numerous types of employers and organizations. We understand the intricate and time-sensitive nature of H-1B Visa petitions and use our experience to obtain successful results for our clients.
Richards and Jurusik Immigration Law regularly creates video content about the current state of a certain aspect of US immigration law, and how it applies to Canadians living and working in the United States today.