H-1B Specialty Occupation Visa
Heartland Immigration helps businesses grow and communities flourish by assisting with applications for H-1B visas to allow foreign persons to work long-term in specialty occupations in the U.S. The H-1B visa remains the means to securing the lifeblood of innovation and is a major contributor to the economy in the United States. Thousands of companies count on the bright minds that benefit from this visa classification to do crucial jobs requiring skill and experience. The attorneys at Heartland Immigration can help your firm meet its employment needs by working with you to create a sound immigration plan for your company and handling your H-1B visa applications. Whether you need one or 1,000 H-1B visa professionals to achieve your business goals, the professionals at Heartland Immigration can assist.
Specialty Occupation Workers – Who Qualifies for an H-1B Visa
The H-1B visa is appropriate for a non-U.S. citizen who will work temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. A "specialty occupation," for purposes of the H-1B visa, is one that requires the theoretical and practical application of a body of specialized knowledge, and which normally requires at a minimum to engage in it a bachelor's degree or its equivalent. Some of the occupations normally considered to meet this definition include medicine, law, engineering, architecture, physical sciences, mathematics, education and the arts.
The particular job an employer seeks to fill with an H-1B visa holder must meet one of the following:
- A bachelor's degree or higher (or its equivalent) is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
Additionally, the individual who will be holding the job at issue on an H-1B visa must meet one of the following:
- Have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation;
Hold an unrestricted State license, registration, or certification which authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment, where such is reequired to practice the occupation;
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty
How the H-1B Visa Application Process Works
An employer must petition for an individual to be able to receive an H-1B visa. After an offer of employment is made and accepted, the employer must procure a prevailing wage determination from either a State Employment Security agency or through a private wage survey. The purpose of this is to gauge how much a person performing the similar function in the geographic area where the job will be performed is paid on average. This is necessary because the employer has to show that the person will not be paid considerably less than this average, which could threaten to depress wages in the region for the type of job at issue.
This information is submitted on Form ETA-9035, Labor Condition Application (LCA), to the U.S. Department of Labor, which includes certain attestations by the employer and other information, such as the actual wage to be paid to the employee. Once the employer receives an approved LCA, the employer submits it along with Form I-129, Petition for a Nonimmigrant Worker, to the U.S. Citizenship and Immigration Services. Additional documentation required with the petition includes information about the job at issue and the proposed employee's qualifications. As long as this information is provided and the employer demonstrates a legitimate need for a specialty occupation worker, the petition should be approved by USCIS.
The next step is for the individual who will fill the job, called the "beneficiary" in immigration parlance, to apply for the H-1B visa at a U.S. embassy or consulate in their country. This is done online using Form DS-160, Online Nonimmigrant Visa Application. After submitting the application the individual must go the embassy or consulate for a short visa interview with a consular officer. The focus of the interview is normally on whether the applicant is indeed qualified for the job at issue.
A person working on an H-1B visa can typically stay in the U.S. and work for up to 6 years – a 3 year term is granted initially, with a 3 year extension available in many cases. After the 6 year period, the individual must remain outside of the U.S. for a year before a new H-1B petition can be approved.
The H-1B Visa Cap
The U.S. Congress has set a limit on how many H-1B visas may be issued each year. Currently, 65,000 H-1B visas may be issued each fiscal year, plus another 20,000 for persons who graduated from a U.S. master's (or higher level, such as Ph.D.) program. Some persons, however, are exempt from the cap. For example, doctors who will work as part of certain programs in underserved communities, persons going to work at universities, government research organizations and certain nonprofit research organizations are exempt from the H-1B visa cap.
Petitions for H-1B visas are accepted by USCIS beginning on April 1 for jobs that will start at the beginning of the next fiscal year, i.e., on October 1. The limit for H-1B visas petitions that USCIS can accept is sometimes reached very quickly.
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