H-1B Specialty Occupation

Under the Immigration and Nationality Act, people looking for employment in United States need an H1-B Visa. H1-B visas are non-immigrant visas that allow U.S. employers to hire foreign nationals in specialty occupations during a specified period. A specialty occupation in the United States requires both theoretical and practical application of highly specialized knowledge, and at least a bachelor’s degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the U.S. Even without a bachelor’s degree, foreign nationals may still be eligible if they combine experience and education, or only if they have experience. Whether you are in the U.S. or abroad, your employer must file a petition with supporting documents on Form I-129, requesting a change of status from a non-immigrant to an H-1B. After USCIS has approved your petition, you must apply for a visa at the U.S. embassy or consulate of the country where you are residing.

Speciality Occupation H-1B Requirements

Listed below are the requirements for a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for entry into the position.
  • Degree requirements are common to organizations that share similar tasks or an employer may show that a particular position is so complex or unique that can only be completed by someone with a degree.
  • The employer normally requires a degree or its equivalent for the position.
  • The nature of the specific duties is so specialized and complex that the skills and knowledge required to perform the duties are generally associated with a bachelor’s degree or higher.

Petitioner Requirements

To submit an H-1B petition, the petitioner (employer) must submit the following documents:

  • The petitioner must submit evidence that the U.S. Department of Labor has certified a labor condition application.
  • A statement that it will comply with the terms of the labor condition application for the duration of the beneficiary authorized period of stay.
  • Evidence that the beneficiary qualifies to perform services in the specialty occupation.

Beneficiary Requirements

To qualify, a beneficiary (foreign national) must meet one of the following criteria.

  • Hold a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university.
  • Hold a foreign degree determined to be equivalent to a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university.
  • Have an unrestricted state license, registration, or certification that allows him or her to conduct the specialty occupation fully and be immediately engaged in it when appointed.
  • Have education, specialized training, and/or progressively responsible experience must be equivalent to the completion of a United States bachelor’s degree or higher in the specialty occupation.

Validity of H1B Visa

The H1B nonimmigrant has a maximum stay in the U.S. of three years, which can be extended but cannot exceed six years. According to the American Competitiveness in the Twenty-First Century Act, the period of stay can be extended. In addition, there is a limited extension for those who have applied for permanent residence. Nonetheless, if your H1-B visa is not extended before the end of the 6th year, you must leave the country for one year.

Concurrent H1-B Visa

Under H-1B portability rules, the worker may start employment for the second employer as soon as the concurrent H1B petition has been filed with USCIS; there is no requirement to wait for approval of the H-1B petition. The employment which is part time through the second employer is fine as long as the petition states that it is for part-time work. Also, as long as the position is still a specialty occupation requiring a relevant bachelor’s degree or foreign equivalent.

“Transfer” and Extension by same or another Employer

It is treated as an extension of stay, if the H-1B temporary worker wants to change employers and continue to maintain H-1B status. The words “H-1B transfer” can be misleading. The USCIS term is “extension of status” since transfer of H-1B incorrectly implies only one employer at a time, or that something gets “transferred” (except the employee) from one employer to another. The fact is that an employer B can file an H-1B petition without the consent or even the knowledge of employer A (current employer). Therefore, extension of H-1B status is the correct terminology and is applicable where an H-1B petition is filed by the same employer in order to extend H-1B status of an employee whose H-1B status is about to expire. The same is applicable when an H-1B petition is filed by another employer.

Amendment of H-1B Visa

The H-1B is non-permanent professional work visa which is employer specific and is issued on a conditional basis. It is important that USCIS must be informed of material changes in the employment approved by the USCIS in the initial petition. When “material” changes occur requiring USCIS notification, an amended petition must be filed with the USCIS. The material change in the employment can be a change in worksite location, change in job duties or a change in occupational classification, or a reduction in hours from full-time to part-time or a reduction in salary.

H-1B Cap

H-1B visas arrive every year at a maximum cap of 65,000 visas per fiscal year. The first 20,000 petitions submitted for beneficiaries with a US master’s degree or higher are exempt from the cap. Moreover, there is no numerical cap on H-1B workers who are employed by higher education institutions, affiliated or related nonprofits, nonprofit research organizations, or government research organizations. A petition must be received by USCIS by April 1 for positions beginning on October 1.

H-1B Visa Holders Family Members

A family member of the H-1B visa holders may seek admission in the H-4 nonimmigrant classification. They may not engage in employment in the United States.

Source: USCIS.gov