The H-1B non-immigrant classification is available for people who wish to perform (1) services in a specialty occupation, or (2) services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or (3) services as a fashion model of distinguished merit or ability.
At The Grady Firm, we specialize in the preparation of H-1B visas for specialty occupations, and have successfully prepared applications for jobs in the STEM fields (such as science, technology, engineering, and math), and other fields that require a Bachelor’s Degree or higher, such as business, logistics, blockchain development, and aerospace.
1. REQUIREMENTS FOR SPECIALTY OCCUPATION JOBS (BACHELOR’S DEGREE OR HIGHER)
In order to qualify for an H-1B visa in a “specialty occupation,” the job requires:
Theoretical and practical application of a body of highly specialized knowledge; and
Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The position must also meet at least one of the following criteria to qualify as a specialty occupation:
A Bachelor’s or higher degree (or its equivalent) is normally the minimum entry requirement for the particular position;
The degree requirement is common to the industry in similar positions among similar organizations or, in the alternative, 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.
2. SPECIALTY OCCUPATION EDUCATION REQUIREMENTS
In order to qualify for a specialty occupation H-1B visa, you must meet one of the following criteria in terms of education or work history:
You must possess a bachelor’s or higher degree required by the specialty occupation from an accredited college or university in the United States;
Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
3. PERIOD OF STAY
As an H-1B specialty occupation worker or fashion model, you may be admitted for a period of up to three (3) years. Your time period may be extended, but generally cannot go beyond a total of six (6) years, though some exceptions do apply.
Your employer will be liable for the reasonable costs of your return transportation if your employer terminates your employment before the end of your period of authorized stay. However, your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position.
4. H-1B CAP
The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year. In addition, 20,000 visas are available for beneficiaries with a master’s degree or higher (aka “Master’s Cap”) from a U.S. institution of higher education, and therefore exempt from the cap. Of these 85,000 available visas per fiscal year, 1,400 H-1B1 visas are set aside for Chilean nationals, and 5,400 are reserved for nationals of Singapore.
Due to the intense demand for these visas, a lottery is held every year in March for new visa applications. In the past few years, there have been additional lottery drawings for applicants in July and November that resulted in more chances to obtain a coveted H-1B visa for select applicants.
Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to this numerical cap.
5. FAMILY OF H-1B VISA HOLDERS
An H-1B holder’s spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification, but only the spouse may obtain authorization to work in the United States.
6. WHEN TO APPLY
New Application
If the application is for a new visa, the application period is only once per year. We begin collecting information for our clients’ applications at the start of each calendar year to ensure that the employee is qualified for the position. We then register our clients with USCIS for the lottery process during the period of March 1 to March 18.
If you receive a notice that you have been selected in the lottery, we will then have ninety (90) days to prepare and submit your H-1B application to USCIS. If your case is approved, the first date that you will be eligible to commence work is on or after October 1 of the same fiscal year.
7. CHANGING EMPLOYERS
If you are applying for a change of employer, we are able to submit your application at any time before you commence the new job. While you are technically permitted to begin working for your employer once receive confirmation that you application has been received by USCIS, you may prefer using Premium Processing (for an additional fee) and wait for an approval from UCSIS before switching employers. With Premium Processing, you will receive either an approval or Request for Evidence within 15 business days of receipt of your application, so you will have a decision much sooner than you would with regular processing.
8. EXTENDING YOUR STAY ON H-1B VISA
If you plan to extend your H-1B status with your current position and employer, we should commence preparing your extension application at least six months before your status expiration date. Based on USCIS’ processing times, it may be possible to submit an extension application via regular processing.
9. APPLYING FOR A GREEN CARD
One of the most attractive features of the H-1B visa is the ability to apply for a Green Card via the EB-2 or EB-3 visa. You will be eligible to receive an immigrant visa once you have an approved I-140 filed on your behalf by your employer, and an approved Form I-485 to adjust your status to that of a Permanent Resident. As the process can take one to two years or longer, and requires that a visa be available for nationals of your home country, you may want begin planning to apply for a Green Card as soon as your employer is willing to begin this process. Check the most current Visa Bulletin to determine if a visa is available for nationals of your country in the second or third category of employment-based visas.
WANT TO FIND OUT IF YOU QUALIFY?
Take our H-1B qualification questionnaire to find out if you have a good chance of qualifying for an H-1B visa, and schedule a consultation with our H-1B attorneys. You can also call us at (949) 798-6298.
The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.
Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form. This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.