H-1B Specialty Occupation Visas

H-1B is a temporary visa for those coming to the U.S. to work in a specialty occupation or as a fashion model of distinguished merit.

“Specialty occupation” positions must meet one of the following requirements:

1. ) The minimum entry requirement for the position is normally a bachelor’s or higher degree or its equivalent,
2. ) The degree requirement is common to the industry or the position 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, or
4. ) The nature of specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. 8 CFR 214.2(h)(4)(iii)(A).

“Specialty occupation” includes the definition of “professional” – which includes: accountants, computer programmer, fashion designer, dietician, human resources manager, marketing research analysts, minister, librarian, software design engineer, teacher, etc.

It is important to note that an employee who has previously received an H1B visa or been granted H1B status is generally exempt from the numerical limitations. In addition, an employee who is presently employed in H1B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer. Also, the spouse and minor children of an H1B employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.

For H1B cases, the Petitioner, as the employer, must be a company or business willing and able to sponsor the beneficiary as well as make payment of fees. The petitioner must apply for a Labor Condition Application (LCA) that is obtained and certified by the Department of Labor (DOL).

An approved H-1B is valid for up to three years, but it can be extended. Prior to the expiration, the employer may apply for an extension of stay or a different employer may petition on behalf of the temporary worker. At the end of the 6 year period, the alien must seek status as a permanent resident or depart the U.S. If they depart, they must remain outside the U.S. for at least a year before reentering on a new H1B.

Numerical Cap: The Cap for H1b visas is 65,000 per year less the Free Trade Visas for Chile and Singapore resulting in 58,200 visas; this does not include an additional 20,000 for those with masters or higher degrees.