H-1B Specialty Occupation Visa |
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The H-1B work visa is a nonimmigrant visa. The visa permits a US company to temporarily sponsor a foreign national for work in the United States. Once the petition is approved and the visa has been granted, the foreign national may live in the US and work for the sponsoring company pursuant to the terms of their visa.
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What is a Specialty Occupation position? |
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To be classified as a specialty occupation, the job being offered to the foreign national employee must meet one of the following criteria:
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Who qualifies as an H-1B employee? |
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To qualify for the H-1B visa the foreign employee must have obtained a US Bachelor’s Degree or higher (or foreign equivalent) in the specialty occupation field from an accredited college or university.
Alternatively the foreign employee can satisfy this requirement by holding an unrestricted license or certification required to practice the specialty occupation or have enough work experience to substitute in lieu of a university degree. In this case, three years of relevant work experience would be counted as one year of university studies. Thus, in order to satisfy the standard US four year degree, the foreign national would be required to have 12 years of relevant experience. |
What are the steps to obtain an H-1B visa? |
The H-1B application process consists of three main stages: the Labor Condition Application, Petition for Foreign Worker, and Visa Processing at the relevant US Embassy or Consulate.
The Labor Condition Application or LCA as it is commonly referred to, is submitted directly through the US Department of Labor. The LCA includes information regarding the salary or pay the foreign national employee will receive. It is important to note that any employer looking to sponsor an H-1B employee must pay them the Prevailing Wage. The Prevailing Wage is the average pay for the same job in the employer’s geographical area. Once the LCA has been certified a petition on behalf of the employee is lodged with the United States Citizenship and Immigration Services (USCIS). USCIS will then make a decision whether to approve or deny the petition. In their discretion, USCIS may also issue a Request for Evidence (RFE) should they require additional documentation to complete their review. Following the petition approval it is the responsibility of the US consular posts to issue the visa. The employee must lodge a separate visa application with the relevant Embassy or Consulate to determine their visa eligibility. People often mistakenly believe that if USCIS approved their H-1B petition, the visa approval is automatic. This is not the case. The visa application is an entirely separate process where the history of the visa applicant is researched more in depth. As such, we recommend using a US immigration lawyer with extensive consular level experience. |
The H-1B Lottery |
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The selection for who is issued an H-1B visa is decided by a lottery system. Unfortunately, there are far more petitions submitted than visas available. Nevertheless, those who do obtain the H-1B visa become an integral part of the US work force during their period of admission.
There are 65,000 visas available in the H-1B lottery. Each year there are 20,000 beneficiaries who are exempt from the cap if they hold a US Master’s degree or higher. H-1B visas are seasonal, and new petitions must be submitted each year during the first week of April. Those who are approved may begin their employment with the sponsoring company on the first of October of the same calendar year. |
Good to Know |
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The H-1B visa is issued for a maximum period of three years. It can be extended for an additional three years for a total stay in H-1B status of six years. Following the six years in H-1B status, the employee must find an alternatively immigration status to remain in the US, or return to their home country for a defined period of time before reapplying. There are limited circumstances where a foreign national is not subject to the six year limit.
Spouses and unmarried children under the age of twenty-one may accompany their H-1B visa family member to the United States. Spouses of H-1B visa holders who are currently awaiting for approval of their Green Card petition are also eligible to apply for work authorization. Contact Barella Global to arrange a confidential consultation with an H-1B visa lawyer. |
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