The H-1B visa allows certain workers with specialized knowledge to work in the U.S. on a temporary basis for an initial period of up to three years. Extensions beyond three years may be granted for a total period of six years and possibly longer if the H-1B worker meets certain requirements of the American Competitiveness in the Twenty-First Century Act (AC21). In addition, the U.S. government only issues 65,000 H-1B visas each fiscal year. However, 20,000 additional visas are available for individuals who hold advanced degrees from an accredited U.S. educational institution. Common H-1B occupations include accountants, engineers, teachers, jobs related to medicine, and certain jobs related to information technology and computer programming.
Labor Condition Application
Prior to filing an H-1B petition, the prospective employer must make certain attestations by filing a Labor Condition Application (LCA) with the Department of Labor. These employer must attest that it will pay the prospective H-1B employee the prevailing wage or more for the position, the hiring of the prospective H-1B employee will not adversely impact the employer’s current employees, and that there is no strike or work stoppage at the employer’s company.
To qualify for an H-1B visa, the employer must demonstrate that the underlying position meets the definition of a “specialty occupation” and that the prospective employee is qualified to perform the specialty occupation.
What is a Specialty Occupation?
To qualify as a specialty occupation, the underlying job must meet one of the following requirements:
- The job requires a bachelor’s degree or its equivalent.
- A bachelor’s degree is a common requirement for the job in the relevant industry or the job can only be performed by a degree holder
- The employer usually hires degree holders for the same or similar job position.
- It is commonly understood that the underlying job normally requires at least a bachelor’s degree due to the complexities of the job duties.
Is the Prospective Employee Qualified for the Specialty Occupation?
Once the employer demonstrates the under job qualifies as a specialty occupation, the employer must then demonstrate that the prospective employee meets one of the following requirements:
- The prospective employee possesses, at a minimum, a bachelor’s degree related to the specialty occupation
- The prospective employee possesses a foreign degree that is equivalent to a U.S. degree.
- The prospective employer is licensed or certified by the state of future employment that permits the prospective employee to work in the specialty occupation within the state
- The prospective employer’s education or training in the specialty field is equivalent to at least a bachelor’s degree and the prospective employee is considered an expert in the specialty based on previous experience.
Spouses and unmarried children under 21 years old may accompany the H-1B employee to the U.S. These family members are given H-4 status and are typically given the same period of stay as the principal H-1B worker.
VisaZip helps individuals and businesses find more efficient solutions to their immigration needs. With over two decades of combined experience handling thousands of immigration cases, our attorneys will help you navigate the complex landscape of U.S. immigration law to find the solution that is best for you. Please contact us to learn more about the H-1B visa and to schedule a consultation.
Written by Farid Masoud Esq. Mr. Masoud previously served as an Assistant Chief Counsel for Immigration Customs Enforcement (ICE) and as an Immigration Officer with United States Citizenship and Immigration Services (USCIS). Mr. Masoud is currently a partner at VisaZip LLP, an immigration law firm that serves individuals throughout the U.S. and globally.
Please note: This article is for general information purposes and should not be construed as legal advice, nor does it create an attorney-client relationship. Please contact an experienced immigration attorney for your specific immigration issue.