H-1B Visa

For Specialty Occupation

Overview

The H-1B non-immigrant visa is for workers who are coming temporarily to the United States for full-time or part-time employment in a “specialty occupation” (including distinguished models).The total number of H-1B visas that may be granted each year is 65,000, and there is an additional set-aside of 20,000 H-1B visas for individuals with a Master’s or higher degree from a United States institution. In addition, some employers, such as academic institutions or their affiliated or related nonprofit entities or nonprofit research organizations, or government research organizations are exempt from this cap and may sponsor H-1B workers even when the cap is reached.

Requirements

The job offered must be in a “specialty occupation.” This means that a specialized bachelor’s degree (or higher) or its equivalent is the minimum requirement for the job by the employer’s internal standard and industry standard. The employer must have a bona fide need for the beneficiary’s services and provide prevailing wages and working conditions.

The foreign worker beneficiary must be qualified to work in the specialty occupation, by possessing the required degree in the specialty area, or a foreign degree that is equivalent to a U.S. bachelor’s degree in the specialty area. The beneficiary may also qualify if the job requires a license to practice the specialty in that case the worker must show the license, or a combination of education, training, and or experience that is equivalent to the required degree.

Under USCIS regulations, a “specialty occupation” is an occupation that requires theoretical and practical application of a body of specialized knowledge and one or more of the following criteria must be met:

A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered;
The degree requirement is common to the industry or, in the alternative, the position 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.

Examples of “specialty occupations” are accountants, engineers, doctors, scientists, architects, teachers, professors, lawyers, management consultants, market research analysts, physical therapists, and fashion models with “distinguished merit and ability.”

Procedure

The H-1B process normally involves three steps. The first step is to obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL). The second step is obtaining approval of the H-1B petition from the USCIS. A third step, obtaining an H-1B visa stamp in the employee’s passport from an American Consulate or Embassy, is generally required if the employee will enter the US from abroad. This third step is not required for Canadian citizens.

If the employer terminates the foreign worker before the end of the period of authorized stay, the employer will be liable for the reasonable costs of the foreign worker’s return transportation. If the foreign worker voluntarily resigns the position the employer is not responsible for the costs of the return transportation.

LCA

Before filing an H-1B petition, the employer first must obtain certification from the Department of Labor that it has filed a labor condition application (LCA) in the occupational specialty in which the alien will be employed.

With this, the employer has to attest that it will pay the foreign worker the greater of the prevailing wage for the occupation in the area of employment, or the actual wage level paid to other employees of the employer with similar experience and qualifications for the same job at the place of employment.

The employer must also attest that it will provide working conditions for the H-1B employees that will not adversely affect other workers similarly employed, including such matters as hours, shifts, vacation periods and fringe benefits.

The employer must attest that there is no strike or lockout in the occupational classification at the place of employment, and provide notice to any bargaining representative, or post notice that a labor condition application has been filed.

Contrary to popular legend, there is no requirement that employers must prove they could not find U.S. workers before hiring H-1B workers.

Petition

The H-1B petition is submitted to the USCIS. An H-1B petition may be approved for up to three years, and extensions are available up to six or more years. The processing time for an H-1B petition varies between 1 to 5 months. The USCIS offers premium processing, which commits them to completing case action within 15 days. 65,000 new H-1B workers can be approved each year. An additional 20,000 H-1B approvals are set aside for those with US graduate degrees. There is no limit on the number of H-1B employers the H-1B beneficiary may be approved to work for within the six-year period. An H-1B beneficiary may be approved for concurrent H-1B employment with more than one employer.

Visa Stamp

After the H-1B petition has been approved by the USCIS, the employee may go to an American Embassy or Consulate overseas to obtain an H-1B visa stamp. The visa stamp in the passport is generally required for entry into the United States in H-1B status. Dependent family members follow the same process to receive H-4 visas for use in entering the U.S. The H-1B/H-4 visa stamping process normally is completed within 1 to 5 days after an interview at the American Embassy or Consulate.

Duration

The H-1B visa may be approved for up to three years, and it can be extended for a total of six years. If an application for permanent residency is submitted at least one year prior to the end of the sixth year, additional yearly extensions may be granted.

If an alien is subject to the six year limitation, he or she may begin a new six year period of H-1B status after leaving the United States for one year.

Dependents

Spouses and unmarried children under 21 years of age are entitled to H-4 classification with the same period of admission as the H-1B holder. Holders of H-4 status are not entitled to work in the United States unless granted employment authorization through alternate means. IF your spouse or child needs work authorization, please contact our office so we can assess if he/she qualifies on their own merits.

Employer Specific Visa and Change of Employers

The visa petition is filed by the U.S. employer and the work authorization is specific to the employer.

The H-1B is an “employer-specific” visa, which allows the beneficiary to work only for the sponsoring employer. The beneficiary may change employers by having a new employer file an H-1B transfer petition. If the beneficiary is currently employed in H-1B status by another employer, the employee may commence employment immediately with a new employer once a new H-1B petition is filed with USCIS, without waiting for the new H-1B petition to be approved.

Additionally, any changes to the beneficiary’s original employment due to a corporate reorganization, merger, promotion or assignment to a new company location may require an amended petition. If any of the above changes occur, please call our office.

Processing Times

Regular processing usually takes three to seven months depending where the petition is filed. However, USCIS offers a Premium Processing service (for an additional $1,225 fee) which ensures processing within 15 business days. If the H-1B beneficiary is residing abroad he or she will have to apply for the actual H-1B visa at the U.S. Consulate before being granted entry into the U.S. Thus, processing times may vary depending on the individual petition.

To schedule a consultation on the H-1B visas, click here.