H-1B Specialty Occupation Visa

The “default” professional visa, but generally lottery-based


The H-1B Specialty Occupation visa is a temporary nonimmigrant visa, often considered the “default” U.S. immigration option for degreed professionals and international graduates. This visa category requires a job offer in a position which commonly requires a Bachelor’s degree or higher in a specific field, which is possessed by the prospective noncitizen employee. The international hire can have a combination of U.S. and foreign education as well as relevant work experience, which is equated to a U.S. Bachelor’s degree or higher. Typically three years of relevant on-the-job experience equates to one year of education.

As there are hundreds if not thousands of jobs which may qualify for H-1B, consult with an experienced business attorney, providing a copy of the prospective job title and description as well as the applicant’s updated CV/Resume, to assess whether the position may qualify for H-1B.

An H-1B visa may be approved initially for a period of three (3) years, renewable in two (2) year increments up to six (6) years. H-1B status can be extended past this six year limitation if certain steps are taken in the pursuit of permanent residency before the fifth year in H-1B status. Although a nonimmigrant visa, the H-1B visa category allows for immigrant intent, which can make the permanent residency process smoother, and it’s common for U.S. employers to sponsor H-1B visa holders to pursue permanent residency under the EB-2 or EB-3 categories following a formal test of the labor market, called a PERM Labor Certification.

Annual New H-1B Visa Lottery for Many Private Employers

The drawback of this visa category for many private employers is that there’s an annual Electronic Registration Process (i.e. lottery) for new visas conducted each year in March, due to the “cap” or limitation on the number of new visas available annually of 65,000 visas for Bachelor’s degree positions, plus an additional 20,000 visas for beneficiaries possessing a U.S. Master’s degree.

Lottery selections are announced at the end of March, allowing for H-1B petitions to be filed with U.S. Citizenship and Immigration Services (USCIS) from April 1 - June 30, for an October 1 start date of H-1B status.

Lottery-Exempt Employers and H-1B Visa Holders

Certain Universities, research institutions, and other organizations are “cap-exempt,” which means that their employees can readily obtain H-1B visas if qualifying. Here are the “lottery-exempt” petitioners:

  • Institution of Higher Education (i.e. University)
  • Nonprofit Organization or Entity related to or affiliated with an Institution of Higher Education
  • Governmental Research Organization
  • Nonprofit Research Organization

H-1B visa holders who have already been “counted against the cap,” having applied under the H-1B visa lottery within the past 6 years, also do not need to apply again under the lottery unless and until they use their six years of status.

For changes in employer while a prior H-1B approval remains valid and within the 60 day grace period from termination of prior employment, there is a concept called “portability” where the applicant could begin work on the date that a change of employer petition is filed, although in certain cases the prospective employee may wish to wait until the approval is issued before risking a lateral transfer.

Consider Other U.S. Immigration Strategies

Due to the frustrations of this lottery-based professional visa, it’s important to consult with an experienced business immigration attorney about alternative options which may be more readily available in the short-term. For example, international professionals from Canada, Mexico, Chile, Singapore, and Australia are beneficiaries of a special treaty which creates a readily available professional work visa. For Canadians and Mexicans, the Trade NAFTA (TN) visa category provides a set list of occupations for qualified professionals to perform in the U.S. More similar to the H-1B in terms of requirements, Singaporean and Chilean professionals can apply for an H-1B1 visa, and Australian professionals can apply for an E-3 visa. The TN, H-1B1, and E-3 visas can be applied directly with a U.S. Consulate abroad, generally “skipping” USCIS, albeit with some pre-filing steps involving the U.S. Department of Labor for H-1B1 and E-3 visa applications. Other options may include O-1 Alien of Extraordinary Ability or applying as a Manager, Executive, or Essential/Special Skills employee of an E-1 Treaty Trader or E-2 Treaty Investor company, which are companies owned at least 50% by citizens from a country with a treaty with the United States and which engage in substantial trade (E-1) or have made a substantial investment (E-2) in the U.S, so long as the employee shares the nationality. International chambers and other economic development organizations often have a list of such companies, which is a relatively creative way that international professionals have found employment in the United States.

The above is informational and not intended to be legal advice. Please consult with an experienced business immigration attorney on your specific facts and circumstances before proceeding with any U.S. immigration strategy.