Immigration Law for Founders, Talent and Investors.

H-1B VISA FOR SPECIALTY OCCUPATIONS


An employer can sponsor an employee for an H-1B visa to temporarily work in the United States in a specialty occupation. A specialty occupation is:

 

An occupation which requires theoretical and practical application of a body of highly specialized knowledge . . . including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

Degree Requirements

The employee must have at least a Bachelor’s degree or the equivalent in a specific specialty. Examples of what is equivalent to a Bachelor’s degree could be that the degree requirement is common to the industry, the job is so complex or unique it can only be performed by somebody with a degree, the employer normally requires a degree, or the duties are specialized and complex. If the employee has a foreign degree, it must be evaluated by an educational credentialing organization that determines it to be at least equivalent to a US Bachelor’s degree. Specialized training and progressive experience can be equivalent to a Bachelor’s degree.

Period of Stay

The initial period of stay is valid up to three years, depending on the dates chosen in the Labor Condition Application (LCA). The total period of H1B status is 6 years, with one year extensions available under the AC21 law for individuals in the process of obtaining a green card for permanent residence.

Labor Condition Application

The first step is to get a Labor Condition Application certified by the Department of Labor. In the LCA, the employer attests that there is no strike or lockout; the working conditions will not adversely affect U.S. workers; the employer will pay the greater of the prevailing or actual wages, notice of the filing of the LCA has been given to other employees or the bargaining representative; and if the employer is H-1B dependent, recruitment and non-displacement attestations may apply.

H-1B Lottery

For the past several years, a cap and lottery system has been in place for awarding H-1B visas: 20,000 H-1B visas are available for foreign workers who have at least a master’s degree from a U.S. university, and 65,000 H-1B visas available for those without a U.S. Master’s degree. Of the 65,000 H-1B visas, 6,800 are reserved for Chileans and Singaporeans (H-1B1 visas).

As in the previous year, the U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions during the first five days of April (April 1-5) and conduct a random lottery. In fiscal year 2016, USCIS received approximately 233,000 petitions that are subject to the cap, including petitions from those with master’s degrees or higher, which means a one-in-three chance of being selected.

Some H-1Bs are not subject to the cap. If the petitioner is an institution of higher education, a nonprofit associated with an institution of higher education, a nonprofit research organization or a government research organization, the petition is not subject to the lottery process.

Work Permits for H-4 Spouses

H-4 spouses now have the right to work in specific situations. If the H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Worker (one of the steps in the green card process), or, has been granted an extension under the law AC21, the H-4 spouse can apply for an Employment Authorization Document (EAD) to have permission to work.

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Next Steps

$460: fee for Form I-129

$750/$1,500: American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (depends on number of people employed by employer)

$500: Fraud prevention and detection fee

$2,000: Public Law 111-230 fee

$1,225: Premium processing service fee

  • Form G-28: Notice of Entry of Appearance as Attorney or Accredited Representative
  • Form I-907: Premium Processing Service
  • Form I-129: Petition for a Nonimmigrant Worker
  • H Classification Supplement to Form I-129
  • H-1B Data Collection and Filing Fee Exemption Supplement
  • Certified Labor Condition Application (LCA)
  1. Initial petition: up to 3 years
  2. Extensions and subsequent petitions: total of 6 years
  3. Further extensions: 1 year at a time with AC21

Immigrant intent: “Dual”

OK to simultaneously seek permanent residence (green card)