H-1B SPECIALTY OCCUPATION VISA

Are you a US company hiring a foreign worker?

General Requirements

You may be eligible for an H-1B visa if you are coming to the US to perform services in a specialty occupation which requires the attainment of a bachelor’s degree or higher, or its equivalent, as a minimum for entry into the occupation in the US.

To qualify as a specialty occupation, the position must meet one of the following criteria:

  • A bachelor’s or higher degree, or its equivalent, is normally the minimum requirement for entry into the particular position;
  • The degree requirement for the position is common to the industry, or the particular position 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; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

To qualify to perform services in a specialty occupation, you must meet one of the following criteria:

  • Have a bachelor’s or higher degree required by the specialty occupation from an accredited US college or university;
  • Have a foreign degree determined to be equivalent to a US bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  • Have an unrestricted state license, registration or certification which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
  • Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a US bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly relate to the specialty.

H-1B Application Process

Obtaining an H-1B visa is a three-step process involving: 1) a Labor Condition Application (LCA) filed with the US Department of Labor (DOL); 2) a petition filed with US Citizenship and Immigration Services (USCIS); and 3) a visa interview at a US consular post abroad.

1. LCA

Before filing an H-1B visa petition on your behalf, an employer wishing to employ you in a specialty occupation must first file an LCA for certification by the DOL which attests:

  • It will pay you at least the same wage paid to similarly qualified workers in the geographic area where you will be working;
  • The working conditions of similarly employed workers will not be adversely affected by your employment and you will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to US workers;
  • There is no strike, lockout, or work stoppage in your occupation at your prospective place of employment, and if one occurs after your LCA submitted, the Employment & Training Administration (ETA) will be notified and your LCA will not be used until the strike, lockout, or work stoppage has ceased; and
  • Notice of the LCA has been or will be provided to workers employed in your occupation, and you will be provided a copy of the LCA.

LCAs are typically submitted to the DOL electronically and are reviewed within seven working days. Once the LCA for your position has been certified, your employer may proceed with filing the H-1B petition.

2. H-1B Petition Processing

Petition Documentation
Your H-1B petition must include the following documentation to demonstrate eligibility for the H-1B visa:

  • Documentation which establishes you are qualified to perform services in a specialty occupation including, as applicable:
    • Copies of your qualifying degree certificate(s) and transcripts;
    • Educational and/or experiential evaluations;
    • Letters from present and/or former employers certifying as to your recognition and expertise in the specialty occupation; and
    • Applicable licenses required for you to fully perform the duties of the application.

AND

  • Documentation which establishes that the services you will perform in the US are in a specialty occupation, including copies of any written contracts between you and your employer, or a summary of the terms of the oral agreement under which you will be employed.

A copy of the certified LCA, discussed above, must also be included with your petition.

Petition Adjudication
Once your H-1B petition is complete, it will be submitted to USCIS for adjudication, in line any cap filing restrictions (discussed below). Processing times may vary depending on USCIS workload.

If during the adjudication process a USCIS adjudicating officer determines that additional information and/or documentation is needed to render a decision on the case, a request for additional information will be issued. Such requests vary in length depending on the extent of information and documentation requested.

Upon receipt of the requested information and documentation, USCIS will resume processing of the petition.

Premium Processing
For an additional fee, you may request premium processing of your petition. Under this service USCIS will adjudicate your case within 15 calendar days of receipt, subject to any cap-imposed adjustments. If a request for additional evidence is issued on a petition filed using the premium processing service, USCIS will have an additional 15 calendar days from receipt of the response to adjudicate the case.

3. H-1B Visa Interview

Presuming your H-1B petition is approved, you will arrange a visa interview at a US consular post abroad. Interview procedures vary widely among consular posts so it is important to carefully follow instructions provided for the post where your H-1B interview will be held.

At your H-1B visa interview a consular officer will ask you questions to confirm the information provided in the H-1B petition about you and your US employment. You will be notified of the decision made on your application at your interview. Provided your application is approved the consular officer will retain your passport for visa stamping.

Your passport with embossed H-1B visa stamp will be returned to you within approximately one week of your interview. Once received you are permitted to travel to the US to work in H-1B status in line with the employment described in your H-1B petition.

H-1B Cap

The H-1B visa category has an annual numerical cap which limits the total number of foreign nationals provided H-1B status to 65,000 per fiscal year, with an additional allocation of H-1B status to 20,000 foreign nationals per fiscal year with a US master’s degree or higher. Once the H-1B cap for a fiscal year has been met, employers must refrain from submitting cap-subject H-1B petitions until filing is permitted for the following fiscal year.

Cap-subject H-1B petitions may be filed at the beginning of April for the upcoming fiscal year, which starts on October 1. If USCIS receives an excess of petitions during the first five business days of a new fiscal year filing period, a lottery system will be used to randomly select the number of petitions required to meet the cap. Accepted H-1B petitions which are subsequently approved will allow the foreign national to begin work for the petitioning employer no sooner than October 1 of the same year, in line with requested petition validity dates. H-1B petitions not selected in the lottery will be rejected by USCIS, and the petitioning employer will need to wait until the following April to file a new petition on behalf of the foreign national for the following fiscal year.

Exemptions

Certain individuals are exempt from the H-1B annual cap and an H-1B petition may be filed on their behalf at any time, regardless of whether the annual cap has been met. Such individuals include:

  • Foreign nationals who have been counted toward the cap within the last six years.
    Foreign nationals who will be employed in the US at an institution of higher education or an affiliated non-profit entity, a non-profit research organization, or a government research organization.

H-1B Visa Renewal

In general, you will be permitted to spend six years in the US in H-1B status before you must return abroad for at least one year before being granted H-1B status again.

Dependents

Your spouse and children may apply for H-4 visas which will allow them to reside with you in the US. Dependent visa applications may be made at the time of your interview, or by scheduling a separate interview at a US consular post following approval of your H-4 visa application.