H1-B, Specialty Occupation
The H-1B nonimmigrant category is appropriate for aliens with a job offer in a specialty occupation. The position must be classifiable as a “specialty occupation,” and the alien must be qualified to fill the position.
To qualify as a specialty occupation, the position must be one that requires theoretical and practical application of a body of highly specialized knowledge, and that performing the job normally requires attainment of a specific U.S. baccalaureate or higher degree, or its equivalent. In order to demonstrate that the position is a specialty occupation, the petitioner must demonstrate that the job offered meets one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position. To determine what is “normal” for the occupation, USCIS refers to the Department of Labor’s Occupational Outlook Handbook.
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree. To demonstrate the industry requirement, the petitioner may submit copies of several advertisements from similarly sized organizations for parallel roles which articulate the same degree requirement.
- The employer normally requires a degree or its equivalent for the position. This could be demonstrated through personnel records showing that the employer currently and/or previously has always required a specific bachelors degree or equivalent for entry into the position.
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. This is the most subjective of the four prongs and also the most difficult to prove.
To be qualified to fill the position in the specialty occupation, the alien must hold the specific United States baccalaureate or higher degree required by the specialty occupation, a foreign degree that is evaluated as equivalent to the required U.S. degree, or a combination of education and/or experience that is equivalent to the degree. When equating experience to education, USCIS considers three years of progressively more responsible experience to be equivalent to one year of education.
The H-1B petition is filed on Form I-129 along with a certified Labor Condition Application (LCA). The LCA must be certified online by the Department of Labor prior to submission of the H-1B petition. LCA certification takes approximately 7 days. The LCA carries with it several employer obligations, most notably that H-1B workers must be compensated at the higher of (a) the wage currently paid to the employee’s other workers in the same profession at the same worksite, or (b) the government-determined prevailing wage for the position. The prevailing wage is determined as part of the LCA adjudication process.
In addition, the petition must include evidence to support the contention that the position is a specialty occupation and that the alien beneficiary is qualified to fill the occupation.
In 1990, Congress mandated that a cap be placed on the number of H-1B’s issued in any fiscal year. Congress set the cap at 195,000 for FY 2001-2003, and reduced the number to 65,000 for FY 2004 (which ran from October 1, 2003 to September 30, 2004) and following years. There are an additional 20,000 H-1B visa numbers set aside for foreign nationals who have earned a U.S. Masters degree.
The government’s fiscal year runs from October 1 to September 30. The I-129 Form requires that I-129 petitions be submitted no more than 6 months in advance of an employee’s start date. Since October 1 is the earliest H-1B cap start date, April 1 is then the first date on which H-1B petitions can be filed each year. Typically the H-1B cap is reached during the first week of April for the employment start date of October 1st. (Notably, the cap was met quite late from 2008-2011 due to the severe recession in which U.S. employers were not hiring in large numbers).
Given the speed with which the cap is reached, U.S. employers seeking to hire H-1B workers need to synchronize their hiring practices with the H-1B cap rules, and should be ready to file new H-1B petitions on or shortly after April 1.
Some H-1B petitions are not counted against the cap. First, only H-1B holders, and not their dependent family members, are counted against the cap. Second, any H-1B nonimmigrant who was already counted against the cap in the last six years will not be counted against the cap unless he would be eligible for a full 6 years of H-1B status at the time the petition is filed. Where multiple petitions are approved for 1 alien, the alien shall be counted only once. Therefore an H-1B worker may change jobs to a new U.S. employer upon the filing of a new H-1B petition which is not subject to the cap. Third, any H-1B petition filed by an institution of higher education or an affiliated nonprofit will not be counted against the cap. And finally, H-1B petitions filed by nonprofit research organizations or governmental research organizations are not counted against the cap.