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H1-B Visas: Specialized Professionals

Who is Eligible?

 The H1-B visa is granted to individuals hired as temporary employees as professionals in specialty occupations, such as accountants, computer analysts, engineers, financial analysts, scientists, architects, and lawyers. To qualify as a specialty occupation, a position must generally require a bachelor’s degree in a specific related discipline. The beneficiary must also hold the appropriate degree or its equivalent. Such an appropriate degree could have been obtained as a baccalaureate degree either from a credentialed four-year U.S. university, or from a foreign university. In the latter case, the visa petitioner must prove that the foreign university degree is equivalent to four years at a U.S. college or university. If the beneficiary has less than four years of college or university course work, a combination of actual study plus three years of work experience for each year of university education missing may be deemed equivalent to a four-year bachelor’s degree.

How Do I Apply?

Start by filing a Labor Condition Application (LCA) with the USCIS. Once that is approved, your prospective employer fills out a Form I-129, Petition for Nonimmigrant Worker along with supporting documentation. The employer then files the forms and documentation with the (USCIS) Service Center in the relevant city. Once the USCIS approves the H-1B petition, a visa is issued by a U.S. consulate.

Documentation Requirements

Workers who want to perform temporary services in a specialty occupation must file a petition with the following documentation:
 

• An approved Labor Condition Application from the Department of Labor.
• The prospective employer may meet this requirement by showing that the degree is common in the industry or at an equivalent place of employment; that the specific duties are so complex that they can be performed only by workers with the specified degree; or that the individual employer customarily requires a degree or its equivalent for the position.
• A copy of the foreign national’s U.S. degree (B.A./B.S., M.A., or Ph.D.) or equivalent foreign degree. Evidence of education, specialized training, or experience that is equivalent to a U.S. baccalaureate degree may also be submitted to fulfill this requirement, if the petitioner has not earned the appropriate degree. Three years of specialized training and/or work experience for each year of college lacking may constitute equivalency to a baccalaureate degree in the specialty. To show equivalency to a master’s degree, the foreign national must have a baccalaureate degree and at least five years of progressively responsible experience in the specialty.
• A copy of any state license required to practice the occupation.
• A copy of any written contract between the employer and the petitioner or, lacking that, a summary of the employment terms being offered.

If the worker is terminated before the H-1B visa expires, the employer must provide return transportation of the worker to his or her last place of residence outside the U.S.

Duration of the Visa

An H-1B is approved for an initial period of up to three years, but it can be extended beyond that. Generally, the maximum term of an H-1B visa, including extensions, is six years, but there are exceptions in certain cases.

H-1B Visa Portability

A worker can take his or her H-1B status from one employer to another. That is, visa portability provisions in the law allow foreign workers previously issued an H-1B visa to begin working for a new H-1B employer as soon as the new employer files a new H-1B petition for the foreign national. Since portability provisions apply to H-1B petitions filed before, on, or after enactment, all foreign workers who meet the requirement have this option. These portability provisions relieve the worker and the employer from having to await approval notification from the USCIS before beginning new H-1B employment.

Labor Certification Application

There have been major changes in the H-1B visa laws and regulations. In particular, the Labor Department has recently published additional regulations under the American Competitiveness in the Twenty-First Century Act (ACWIA) which place some difficult requirements on H-1B dependent employers. However, the regulations also provide helpful guidance on issues affecting all employers.

Spouses and Minor Children

The spouse and unmarried children of an H-1B visa holder are entitled to H-4 visas for the same length of stay as the worker. The spouse and dependent minor children cannot be employed in the U.S., but they may attend school. In addition, domestic workers of an H-1B visa holder can receive a B-1 business visa and obtain work authorization.

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