H-1B Visa: Specialty Occupation

The H-1B visa is one of the most sought-after U.S. work visas, allowing foreign professionals to live and work temporarily in the United States in specialty occupations. With its unique benefits and potential for transitioning to permanent residency, the H-1B visa is an excellent choice for skilled workers seeking opportunities in the U.S.

What Is the H-1B Visa?

The H-1B visa is a non-immigrant visa that enables U.S. employers to hire foreign workers for specialized roles requiring theoretical or technical expertise. Common industries include technology, engineering, finance, healthcare, and education. The program is overseen by U.S. Citizenship and Immigration Services (USCIS).

Key Features of the H-1B Visa

Specialty Occupations: Jobs must require at least a bachelor’s degree (or equivalent) in a specific field.
Employer Sponsorship: Applicants must have a job offer from a U.S. employer willing to sponsor the visa.
Annual Cap: Limited to 85,000 visas annually:
- 65,000 for regular applicants.
- 20,000 for individuals with advanced degrees from U.S. institutions.
Dual Intent: H-1B holders can pursue a green card while on H-1B status without jeopardizing their visa.

Who Qualifies for the H-1B Visa?

For the Employee:

Educational Requirements:
- A bachelor’s degree or higher in a relevant field.
- Foreign degrees must be evaluated for U.S. equivalency.
- If no degree, equivalent work experience (3 years of experience equals 1 year of education) may qualify.
Specialty Occupation:
- The job must require specialized knowledge and skill, typically found in fields like:
  - Information technology.
  - Engineering.
  - Healthcare (e.g., physicians, physical therapists).
  - Mathematics.
  - Finance.
  - Architecture.
Eligibility to Work in the U.S.:
- Applicants must be lawfully present in the U.S. (if filing for a change of status) or apply from abroad.

For the Employer:

Wage Requirements:
- Employers must pay at least the prevailing wage for the role, as determined by the Department of Labor (DOL).
Labor Condition Application (LCA):
- Employers must file an LCA to demonstrate that hiring a foreign worker will not negatively impact U.S. workers’ wages or conditions.

Step-by-Step Guide to the H-1B Visa Process

Step 1: Determine Eligibility

Verify that the job qualifies as a specialty occupation and the applicant meets the educational requirements.

Step 2: File a Labor Condition Application (LCA)

Employer submits Form ETA-9035 to the Department of Labor.
The LCA certifies:
- The foreign worker will receive the prevailing wage.
- Working conditions for U.S. employees will not be adversely affected.

Step 3: Submit the H-1B Petition (Form I-129)

After LCA approval, the employer files Form I-129 with USCIS.
Required documentation includes:
- Proof of educational qualifications (degrees, transcripts, evaluations).
- Copy of the job offer letter.
- Approved LCA.
- Evidence of the employer’s ability to pay (e.g., tax returns, payroll records).

Step 4: Participate in the H-1B Lottery (If Subject to the Cap)

H-1B Cap Registration:
- Employers register the applicant in the H-1B lottery online.
- Registration period typically opens in March.
- If selected, employers can proceed with filing the petition.
Cap-Exempt Employers:
- Universities, nonprofit research organizations, and government research organizations are not subject to the annual cap.

Step 5: Consular Processing or Change of Status

If outside the U.S., the applicant applies for the H-1B visa at a U.S. consulate or embassy.
If inside the U.S., the applicant can request a change of status upon approval of the I-129 petition.

Validity and Extensions

Initial Approval:
- H-1B visas are granted for an initial period of 3 years.
Extensions:
- Can be extended for an additional 3 years, for a total of 6 years.
- Extensions beyond 6 years are available for green card applicants under AC21 provisions.

H-1B Dependents: H-4 Visa

Spouses and children under 21 of H-1B visa holders can apply for H-4 visas.

Employment Authorization: Certain H-4 spouses (those whose H-1B spouse has an approved I-140 green card petition) can apply for work authorization.

Common Challenges and Solutions

H-1B Lottery System:

Challenge: The lottery system makes it difficult for applicants to secure a visa, with demand often exceeding the annual cap.
Solution: We help employers and employees explore alternative cap-exempt opportunities, such as nonprofit or academic employers.

Requests for Evidence (RFEs):

Challenge: USCIS often issues RFEs questioning the specialty occupation, degree equivalency, or employer-employee relationship.
Solution: We provide detailed documentation and legal arguments to respond effectively to RFEs.

Maintaining Status:

Challenge: Gaps in employment or non-compliance with visa terms can jeopardize status.
Solution: We offer guidance on portability (changing employers) and extensions to ensure uninterrupted status.

Path to Permanent Residency (Green Card)

The H-1B visa is often used as a stepping stone to a green card. Common pathways include:

EB-2 (Advanced Degree Professionals):
- Requires labor certification (PERM).
EB-3 (Skilled Workers and Professionals):
- Suitable for positions requiring a bachelor’s degree.

H-1B holders benefit from dual intent, allowing them to apply for a green card without jeopardizing their non-immigrant status.

Processing Times

H-1B Lottery: Lottery results announced within a few weeks of registration.
USCIS Petition Processing:
- Regular processing: 4–6 months.
- Premium processing: 15 calendar days for an additional fee.
Consular Processing: Typically 2–4 weeks after petition approval.

Why the H-1B Visa Is a Great Option

Access to U.S. Job Market: Provides opportunities in some of the world’s most competitive industries.
Path to Residency: A clear route to permanent residency for those seeking long-term opportunities in the U.S.
Family Benefits: Dependents can live, study, and in some cases, work in the U.S.
Global Mobility: Work experience in the U.S. can open doors to international career advancement.

How We Can Help

Our firm specializes in navigating the complexities of the H-1B process, including:

Petition Preparation: Ensuring thorough and accurate submissions to minimize delays.
RFE and Denial Defense: Crafting strong responses to USCIS concerns.
Green Card Transitions: Assisting H-1B holders with their permanent residency applications.
Employer Compliance: Guiding companies through LCA requirements and ensuring legal compliance.