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H-1B Specialty Occupation Workers

The H-1B Visa (or H-1B Status, for those in the U.S.) permits U.S. employers to temporarily employ certain qualifying workers in specialty occupations. H-1B status is generally valid for six years, issued in two three-year terms. Under certain circumstances, an H-1B can be extended beyond six years. The H-1B Visa is subject to an annual numerical cap.

The H-1B is the “workhorse” of the professional U.S. immigration system – permitting U.S. employers to petition for up to 65,000 specialty workers per fiscal year. Certain workers are exempt from the annual cap, including: 20,000 workers receiving master’s (or higher) degrees from U.S. universities, and employees petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization. The H-1B program is extremely popular, and in recent Comprehensive Immigration Reform proposals in Congress, an increase to 180,000 annual H-1Bs has been discussed.

What Qualifies as an H-1B Specialty Occupation?

Under U.S. immigration law, a “specialty occupation” is one which requires the theoretical and practical application of a body of highly specialized knowledge. Examples include biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, certain business specialties, and theology.

The employer must keep on file the employee’s Public Access File, and the H-1B employment must meet one of the following criteria to qualify as a specialty occupation:

  1. Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  2. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
  3. The employer normally requires a degree or its equivalent for the position
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree

Who Qualifies as an H-1B Worker?

In addition to general U.S. immigration admissibility, an H-1B employee must meet one of the following requirements in order accept a job offer in a specialty occupation:

  1. Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  2. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  3. Hold an unrestricted state license, registration, or certification which authorizes him or her to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  4. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Dual Intent” Permits H-1B Visa Applicants to Aim for a Green Card

Unlike other nonimmigrant visa applicants, such as B-2 visitors, or F-1, J-1 Students, H-1B workers are not ineligible for their visa by wanting to stay in the U.S. permanently. The concept of “dual intent” permits H-1B visa holders (and L-1 visa holders) to receive a temporary visa or extend their status while also intending to immigrate. This facet of the Visa has become critical in recent years due to backlogs and retrogression in the employment-based immigration process. It now can take almost seven years for skilled professional applicants from certain countries to obtain green cards.

Under portability provisions, exceptions to the six-year maximum for individuals holding H-1B status can allow qualifying workers to stay in the U.S. pursuant to H-1B status while their Green Card process is ongoing.

H-4 Visa and Status for Family Members

Immediate family members (spouse and children under 21) are permitted to accompany and H-1B worker to the U.S. under the H-4 Visa category. Children in the U.S. under H-4 status cannot work or obtain a Social Security Number (SSN). They can, however, attend an educational institution and typically obtain a Driver’s License. As of May 26, 2015, qualifying spouses holding H-4 status can apply to the Department of Homeland Security for work authorization.

Change in the H-1B Employment

H-1B status is delicate and tied to the petitioning employer and position. If there are material changes in the employment, or an H-1B worker quits or is dismissed from the sponsoring employer, the worker must act immediately to apply for and be granted a change of status to another non-immigrant status or risk falling out of status. If another qualifying employment opportunity exists, a change of employer petition is also a possibility. In today’s business climate, Change, Extension and Adjustment of Status issues pertaining to the H-1B often arise.

Common H-1B Scenarios

KILF represents businesses ranging from small start-ups to Fortune 500 companies in all aspects of H-1B preparation:

For a detailed evaluation as to whether a potential H-1B employer’s proffered position, and the beneficiary’s background and qualifications meet H-1B criteria, schedule a consultation with Khurgel Immigration Law Firm. As the H-1B process is an employer-driven process, it is important that the employer be present or available by phone during the H-1B consultation, to discuss the process.

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