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.

Qualifying Occupations

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Qualified Aliens

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.

Required Documents

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.

H-1B Cap

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.

H-1B on the Immigration Newswire

The 2016 H-1B Cap Season is Here  (19 February 2016)

The H-1B visa is a nonimmigrant visa issued to workers coming to the United States to perform work within one of the designated specialty occupations.

USCIS Publishes Proposed Rule to Implement AC21  (16 February 2016)

On December 31, 2016, USCIS published a comprehensive Proposed Rule in the Federal Register. If the rule is made Final...

H-1B Amendments for Third Party Placement Situations: Travel Timing Issues  (7 January 2016)

As we previously reported, the AAO precedent decision, Matter of Simeio Solutions, Inc., dramatically changed the requirements for when an amended H-1B petition must be filed...

Can I Port From a Status Other than H-1B?  (23 December 2015)

The American Competitiveness In the Twenty-First Century Act, or AC21, section 105(a), created an important benefit for H-1B nonimmigrants known as H-1B portability. (This is not to be confused with the permanent portability provision, also created by AC21).

USCIS Resumes Premium Processing Service for H-1B Extensions Early  (15 July 2015)

On May 19, 2015, USCIS announced that they would be suspending premium processing service for Form I-129 extension of stay H-1B petitions from May 26, 2015 to July 27, 2015

Regulatory Requirements for Education Experience Evaluations for H-1B Petitions  (30 June 2015)

H-1B status is reserved for aliens working in a specialty occupation, which is defined in 8 CFR 214.2(h)(4)(ii) as an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelors degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation.

What is the H-1B Cap?  (16 June 2015)

Congress has imposed an annual limit on the number of new H-1B petitions that can be approved in each fiscal year. The cap is set at 65,000.

Filing Strategy During H-1B Premium Processing Suspension  (26 May 2015)

On May 19, 2015, USCIS announced that it will be suspending Premium Processing on all H-1B petitions requesting extension of stay for a temporary period between May 26 and July 27, 2015.

USCIS Releases Guidance to AILA on WHEN to file H-1B Amended Petitions  (22 May 2015)

On April 9, 2015, the Administrative Appeals Office (AAO) released a new precedent decision holding that whenever a change takes place which requires a new Labor Condition Application (LCA) and H-1B amended petition must also be filed.

USCIS Suspends Premium Processing for H-1B Extensions  (20 May 2015)

On May 19, 2015, USCIS announced that from May 26 until July 27, 2015, they will temporarily suspend premium processing for all H-1B extension of stay petitions.

Amended H-1B Petition Now Required Whenever a New LCA Is Filed  (14 April 2015)

USCIS regulations require that whenever there is a material change in an H-1B beneficiarys position, the petitioner must file an amended petition to reflect the change. The term material is not defined, however, so the circumstances triggering the need for an amended petition are not clear.

H-1B CAP lottery for FY2016 complete!  (14 April 2015)

The Immigration and Nationality Act places an annual cap of 65,000 on the number of new H-1B petitions that can be filed in any given year. In addition, the first 20,000 petitions filed for individuals with a U.S. masters degree or higher are exempt from the 65,000 cap, meaning that there are actually 85,000 H-1B cap numbers available each fiscal year.

H-4 EAD Final Rule Passed  (27 March 2015)

On February 25, 2015, the Department of Homeland Security (DHS) issued a Final Rule amending DHS regulations to extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident status.

H-1B Cap Filings Due First Week of April  (27 March 2015)

The Immigration and Nationality Act places an annual cap of 65,000 on the number of new H-1B petitions that can be filed in any given year. In addition, the first 20,000 petitions filed for individuals with a U.S. masters degree or higher are exempt from the 65,000 cap.

14 articles in total.