Powell Immigration Law PC | Business, Employment and Family Immigration Law | California

H-1B Specialty Occupation Visa

A BASIC OVERVIEW OF THE VISA IS PROVIDED HERE. IF YOU HAVE FURTHER INQUIRIES AS TO THE APPLICATION PROCESS OR WHETHER OR NOT THIS IS THE CORRECT ROUTE FOR YOUR NEEDS, PLEASE DON'T HESITATE TO CONTACT US.

General

The H-1B visa allows organizations with a Federal Identification Number/IRS tax number to employ foreign professionals for work in positions considered specialty occupations for an initially allowed stay of three years (up to six years through extensions).

This is subject to an annual numerical limit "cap" of 65 thousand visas each fiscal year, exempting H-1B workers petitioned for or employed at institutions of higher education or their related nonprofit entities/research organizations, as well as government research organizations. The first 20 thousand petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are also exempt from the cap.

Requirements

Employer Eligibility

In order for a prospective employer to be eligible for sponsoring an H-1B visa, the petitioner must prove that the position is a specialty occupation through one of the following:

  • A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
  • The degree requirement for the position is common to the industry or the job is so complex or unique that it can only be performed  by an individual possessing the degree in question.
  • The employer normally requires a degree or its equivalent for the position.
  • The duties of the position are so specialized and complex that the knowledge required for their performance is usually associated with the attainment of certain bachelor’s or higher degrees.

Labor Condition Applications (LCA)

Prospective specialty occupation employers must obtain a certification of an LCA from the Department of Labor (DOL). The LCA includes certain attestations described below whose violation can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other various sanctions. In the LCA an employer attests that it will comply with the following labor requirements:

  • The employer will pay the beneficiary no less than the wage paid to similarly qualified workers or, if more substantial, the prevailing wage of the position according to the applicable geographic area.
  • The working conditions provided to the beneficiary will not adversely affect other similarly employed workers. This includes that at the time of the LCA there is no strike or lockout at the employer's place of business and that a notice of the LCA's filinghas been given to the union bargaining representative or has been posted at the place of business.

Employee Eligibility

For the prospective employee to be viewed as qualified for the specialty occupation offered and therefore eligible for the H-1B visa, one of the following must be demonstrated:

  • The applicant must have completed a U.S. bachelor’s or higher as required by the specific specialty occupation.
  • The applicant possesses a foreign degree that is equivalent to the U.S. bachelor’s or higher required by the specialty occupation
  • Holding of an unrestricted state license, registration or certification authorizing the individual to fully practice the specialty occupation.
  • Possession of the education, training or experience necessary for the specialty occupation that is equivalent to the completion of such a degree, in addition to recognition of expertise in the field through progressively responsible positions directly related to the specialty.

Positions Generally Considered to be Specialty Occupations

The following have been shown by USCIS to normally be considered specialty occupations: 

  • Accountants, acupuncturists, chiropractors, computer programmers (recently rescinded by memo), dietitians, electronics specialists, fashion designers, general managers (where business is complex), graphic designers, hotel management, industrial designers (with a B.A.), interior designers (commercial), journalists, librarians, medical records librarians, medical technologists, ministers, orthopedists, pharmacists, social workers, technical publication writers and vocational counselors.

If your position is not listed above, please contact us to see if your occupation may still qualify to USCIS as a specialty position, as this list is by no means exhaustive.

Wage Level Complications

A growing trend has been witnessed in which USCIS has been issuing requests for evidence (RFEs) in response to H-1B petitions listing positions with Level 1 or 2 wages. To inform yourself regarding this policy shift and its implications, please consider our following articles:

Third-Party Worker Considerations

New guidance has been released raising the degree of scrutiny designated to H-1B petitions involving third-party workers. These changes are discussed in the following article:


 

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