H-1B Visa
Specialty Occupation Worker
What is H-1B visa?
The H-1B visa allows U.S. employers to hire foreign workers to come to the U.S. and work for the employers in professional positions. A professional position is a position that is in a ‘specialty occupation’ and must require a bachelor’s degree or above as a minimum for entry into the occupation in the U.S. It is authorized under the Immigration and Naturalization Act Section 101(a)(15)(H)(i)(b).
Who can apply for H-1B visa?
U.S. employers to hire foreign professionals in specialty occupations, such as engineers, programmers, computer analysts, financial analysts, consultants, scientists, lawyers, accountants, or professionals with Bachelor’s or above.
• Foreign nationals providing services related to U.S. Department of Defense cooperative research and development projects or co-production projects.
• Professional Nurses entering the U.S. to perform complex job duties or supervise nursing operations
• Fashion models of distinguished merit and ability.
Special Requirements and limitations of H-1B visa:
• The job position that offered by the U.S. employer must be a specialty occupation.
• The H-1B visa applicant must have the credential and ability to work in the specialty occupation offered by the employer
• The H-1B visa applicant must have a bachelor’s degree or above, and/or the equivalent in work experience as required in the offered specialty occupation.
• Labor Condition Application (LCA) Requirement: The H-1B petitioner must obtain a certified LCA from the U.S. Department of Labor.
• There is an annual numerical H-1B cap of 65,000 that can be issued in a fiscal year. The cap only applies to new H-1B petitions, it does not apply to H-1B holders who intent to extend the stay or to change employer.
• The H-1B visa is a temporary non-immigrant visa. To stay in the U.S. has a general limitation of 6 years maximum. If a H-1B applicant has used up his or her 6-years H-1B in the U.S., the applicant has to be out of the U.S. for a year before the applicant can apply for new H-1B quota again. There are exceptions to the 6-year limitation under the rules of AC21. One basic rule under AC21 is that H-1B status can be extended in one-year increments if the green card process was started at least 365 days prior to the H-1B extension request. A green card process could mean (i) a labor certification application was filed with the U.S. Department of Labor; or (ii) a form I-140 was filed with the US Citizenship and Immigration Services if no labor certification is required. Another rule is that if an I-140 petition has already been approved but priority date of the beneficiary is not current, i.e. immigrant visa number is not available at the time, the applicant may apply for three-year extensions of H-1B status.
What is a specialty occupation?
A ‘specialty occupation’ is one that requires: (a) A theoretical and practical application of a body of specialized knowledge; and (b) 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 U.S.
How to apply for H-1B visa?
• If you are not in the United States at this time, the employer should use form I-129 to file H-1B petition with the USCIS; and then the H-1B visa applicant should use forms DS-156 and DS-157 to apply the H-1B visa at a U.S. Consulate office.
• If you are currently in the United States and in a status other than H-1B, your employer should use form I-129 to petition for the H-1b status for you. Your spouse and children should use form I-539 to apply for H-4 status.
• If you are already in the United States and in the H-1B status and wish to extend the period of stay, your employer should use form I-129 to apply for the H-1B extension for you. Your spouse and children should use form I-539 to apply for H-4 status extension.
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