H-1B Specialty Occupation Visa
The H-1B visa is a non-immigrant visa that allows United States companies to employ foreign nationals in specialty occupations that require theoretical or technical expertise in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.
The definition of “specialty occupation” is one that requires:
- A theoretical and practical application of a body of specialized knowledge; and
- The attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Although there is no definitive list of occupations eligible for the H-1B visa, a useful general guide for applicants to check if their occupation might be considered a graduate specialty profession and thus might be eligible for an H-1B visa, is the Occupational Information Network website O*NET Online.
Please note that foreign nationals cannot apply directly for an H-1B visa. Instead a United States employer must file a petition in behalf of the foreign national.
Certain family members may also accompany the H-1B visa holder as dependents. An H-1B visa holder may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Spouses of H-1B visa holders cannot, generally, apply for work authorization.
H-1B Visa cap
H-1B visas are subject to an annual visa cap each financial year. United States employers can begin applying for the H-1B visa six months before the actual start date of the visa. The foreign national cannot start work until October 1 of said year.
Current immigration law allows for a total of 85,000 new H-1B visas to be made available each government fiscal year. This number includes 65,000 new H-1B visas available for foreign nationals in specialty occupations (professional-level) with at least a bachelor’s degree, with an additional 20,000 visas available for those specialty workers with at least a master’s degree from a United States academic institution. In recent years the H-1B visa cap has been heavily oversubscribed near the beginning of April each year. USCIS then holds a lottery for the available H-1B visas available.
The offered position must meet one of the following criteria to qualify as a specialty occupation:
- Have a minimum entry requirement of a Bachelor's or higher degree or its equivalent.
- The degree requirement for the offered position is common to the industry or the offered position is so complex or unique that it can be performed only by an individual 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 knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
For a foreign national to qualify to accept a job offer in a specialty occupation he/she must meet one of the following criteria:
- Have completed a US bachelor's or higher degree required by the specific specialty occupation from an accredited college or university.
- Hold a foreign degree that is the equivalent to a UNITED STATES bachelor's or higher degree in the specialty occupation.
- Hold an unrestricted state license, registration, or certification which authorizes he/she to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
- Have education, training, or 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.
The H-1B visa is initially granted for up to three years, but may then be extended to a maximum of six years. An H-1B visa holder may extend his/her H-1B status annually in one-year increments if a labor certification or I-140 petition was filed at least 365 days prior to the day when the H-1B visa holder reaches the six-year limit. Or, if the H-1B visa holder’s I-140 has already been approved but his/her priority date is not current, i.e. immigrant visa number is not available to him/her, he/she may apply for three-year extensions of his/her H-1B status.
Even though the H-1B visa is a non-immigrant visa, it is one of the few United States visa categories recognized as dual intent, meaning the H-1B visa holder can apply for and obtain a United States Green Card while in the United States on an H-1B visa. If he/she are still in the United States on an H-1B visa and wishes to remain in the US for more than six years, he/she can apply for permanent residency in the United States to receive a Green Card. If he/she do not gain permanent residency prior to the expiration of his/her H-1B visa, then he/she must live outside the US for at least one year before reapplying for another H or L visa.