H-1B Specialty Occupation Visa

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 to work in the U.S. 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. 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 qualifications for the H-1B visa category.

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

A significant problem with this visa category for many private employers is that there’s an annual Electronic Registration Process (i.e. lottery) to be able to file H-1B petitions for new H-1B beneficiaries. There is a “cap” or limitation on the number of new H-1B visas available annually of 65,000 visas for Bachelor’s degree positions, plus an additional 20,000 visas allocated to beneficiaries possessing a U.S. Master’s degree.

Registrations may be submitted in the first few weeks of March, and 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 at the earliest. Subsequent lotteries may be conducted if an insufficient number of petitions are filed and approved.

For May graduates, employers can engage in the March Electronic Registration lottery process before graduation and wait to file the petition until after graduation due to the filing window of April 1 – June 30.
For recent international graduates who are working pursuant to F-1 Optional Practical Training (OPT) whose OPT expires after April 1 but before the earliest date of October 1 when H-1B status can begin, there is a concept called “cap gap” where student work authorization is automatically extended so long as an employer filed the petition before OPT expires.

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.

Eligibility Criteria

To qualify for an H-1B visa or status, U.S. employers must establish that their current or prospective employee applicants meet the following criteria:

• Specialty Occupation: The applicant must be entering the U.S. to perform services in a specialty occupation. A specialty occupation is a job which ordinarily requires at minimum a U.S. Bachelor’s degree or the equivalent foreign education or work experience (i.e. 3 years of work can equate to 1 year of higher education) in a specific field. Using the Occupational Information Network (O*NET) , search for the occupation which equates to the job by comparing the actual job duties to the Tasks listed for each occupation, and then review the “Education” to determine if the occupation ordinarily requires a Bachelor’s degree.
• Qualifying Education: The applicant must possess the requisite education or equivalency in an area of concentration that qualifies them for the specific field required by the specialty occupation. 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. In the Occupational Outlook Handbook , check under the “How to Become One” tab for the occupation to determine the qualifying education. For example, qualifying technology occupations commonly accept a Bachelor’s degree in computer science, engineering, or a related field, whereas the occupation of pilot generally requires a Bachelor’s degree but in any field (i.e. not a specific field) and therefore does not qualify.
• Job Offer:An offer of employment from a U.S. employer is a prerequisite for obtaining an H-1B visa or status. Self-employment is not permitted, and an employer/employee relationship must be established through control, which also commonly means employee ownership of 50% or greater is scrutinized.
• DOL Requirements: The employer must also file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) and meet Notice of Filing and other Public Access File requirements. The employee must be paid the prevailing wage which is based upon the area of intended employment, occupational classification, and wage level (i.e. entry level or more advanced). Prevailing wages may be found in the Foreign Labor Certification Data Center.

Application Process

1. Job Offer and LCA – A U.S. employer must offer a qualifying job to the Australian citizen and submit an LCA to the DOL for certification. The LCA attests that the employment conditions meet the prevailing wage requirements discussed above. A Notice of Filing and other Public Access File requirements must be met, with which an experienced business immigration attorney can assist.
2. If the prospective employee is in the United States and does not wish to travel internationally, the employer can file a Form I-129 Petition for a Nonimmigrant Worker with the certified LCA and required evidence with the United States Citizenship and Immigration Services (USCIS). The approval issued by USCIS does not generally permit international travel without abandonment of the approval, with limited exceptions.
3. If the prospective employee can travel internationally, applying with the certified LCA and required evidence for an H-1B1 visa directly with a U.S. Consulate in a country of residence or citizenship is more common.

Validity and Extensions

The initial validity of the H-1B1 visa is eighteen (18) months (i.e. 1.5 years), with the possibility of extensions. Comparatively, the H-1B visa may be approved in three-year increments up to a general maximum of six years. An H-1B visa may be approved initially for a period of three (3) years, renewable for an additional period of three (3) years for 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 of H-1B status. Although a nonimmigrant visa, the H-1B visa category allows for immigrant intent, which can make the permanent residency process smoother. It’s common for U.S. employers to sponsor H-1B visa holders to pursue permanent residency under the EB-2 or EB-3 immigrant categories following a formal test of the labor market, called a PERM Labor Certification.

Spouse and Unmarried Children under 21

H-1B visa holders can bring their spouses and unmarried children under 21 years of age to the U.S. These dependents can apply for H-4 visas with proof of relationship to the H-1B beneficiary and can attend public or private schools or University but are not generally authorized to work in the U.S. An exception exists for H-4 spouses to be eligible to apply for an Employment Authorization Document (EAD) when the H-1B status holder is the beneficiary of an approved I-140 Immigrant Petition or an extension past the general six-year limitation.

Green Card Pathway?

H-1B Specialty Occupation visa holders often pursue permanent residency through a PERM Labor Certification based immigrant petition by a U.S. employer under the EB-2 or EB-3 immigrant preference categories.

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.