H-1B Specialty Occupation Visa

The H-1B work visa is a nonimmigrant visa that enables a U.S. company to temporarily sponsor a foreign national to work in the United States. Upon approval of the petition and visa issuance, the foreign national can reside in the U.S. and work for the sponsoring company, subject to the conditions of their visa.

What is a Specialty Occupation position?

To be classified as a specialty occupation, the job being offered to the foreign national employee must meet one of the following criteria:

• A Bachelor’s Degree or higher (or foreign equivalent) is normally the minimum entry requirement for the position;
• A degree is common to the industry or the position is so complex it can only be performed by someone with a degree;
• The employer normally requires a degree when hiring a candidate for the position; or
• The role is so specialized and complex that the skills and knowledge required to perform the job is usually associates with having obtained a degree.

Who qualifies as an H-1B employee?

To be eligible for the H-1B visa, a foreign employee must have earned a U.S. Bachelor's Degree or higher (or foreign equivalent) in the specialty occupation field from an accredited college or university.
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Alternatively, this requirement can be fulfilled if the foreign employee holds an unrestricted license or certification necessary to practice the specialty occupation, or possesses sufficient work experience as a substitute for a university degree. Under this scenario, three years of relevant work experience are considered equivalent to one year of university studies. Therefore, to match a standard U.S. four-year degree, the foreign national would need to have 12 years of relevant work experience.

What are the steps to obtain an H-1B visa?

The H-1B application process comprises three primary stages: the Labor Condition Application (LCA), Petition for a Foreign Worker, and Visa Processing at the appropriate U.S. Embassy or Consulate.

The LCA, submitted directly to the U.S. Department of Labor, provides information about the salary or compensation the foreign national employee will receive. Notably, any employer aiming to sponsor an H-1B employee must pay them the Prevailing Wage, which is the average compensation for the same job in the employer's geographic area.

Once the LCA has been certified, a petition on behalf of the employee is filed with the United States Citizenship and Immigration Services (USCIS). The USCIS then decides whether to approve or deny the petition. If necessary, USCIS may issue a Request for Evidence (RFE) if additional documentation is needed for their review.
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After the petition is approved, it is the duty of the U.S. consular posts to issue the visa. The employee must file a separate visa application with the relevant Embassy or Consulate to assess their visa eligibility. It's a common misperception that an approved H-1B petition by USCIS guarantees visa approval – this isn't the case. The visa application process is entirely distinct, involving a more thorough examination of the visa applicant's history. For this reason, we advise using a U.S. immigration lawyer with considerable consular level experience.

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The H-1B Lottery

The issuance of the H-1B visa is determined by a lottery system, as there are typically more petitions submitted than visas available. However, those fortunate enough to secure the H-1B visa become crucial contributors to the U.S. workforce during their admission period.
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Each year, 65,000 visas are allocated through the H-1B lottery. An additional 20,000 beneficiaries are exempt from this cap if they hold a U.S. Master's degree or higher. The H-1B visas operate seasonally, with new petitions needing to be submitted during the first week of April each year. Once approved, visa holders may commence employment with their sponsoring company on the first of October of the same calendar year.

Good to Know

The H-1B visa is issued for a maximum period of three years but can be extended for an additional three years, amounting to a total stay in H-1B status of six years. After the six years in H-1B status, the employee must either find an alternative immigration status to stay in the U.S. or return to their home country for a specified period before they can reapply. There are only limited circumstances where a foreign national is exempt from this six-year limit.

Spouses and unmarried children under the age of twenty-one can accompany their H-1B visa family member to the United States. Additionally, spouses of H-1B visa holders who are in the process of having their Green Card petition approved are eligible to apply for work authorization.
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For a confidential consultation with an H-1B visa lawyer, please contact Barella Global.

"The H-1B Specialty Occupation Visa permits its holder to live in the United States and work for the sponsoring company throughout the validity of the visa. There are instances where the employer may choose to upgrade the employee's status by filing a green card application on their behalf, initiating the path towards permanent residency."

Contact our H-1B Visa Lawyer