H-1B, Specialty Occupation

The H-1B nonimmigrant visa classification is a popular tool for U.S. employers who wish to recruit and employ foreign nationals for a temporary period in the United States in a "specialty occupation." Requirements include a job offer in a qualifying occupation, the possession of a bachelor's degree or its equivalent, and an offered salary that meets prevailing wage requirements.

What is a specialty occupation?

Under INA section 101(a)(15)(H)(i)(b), a "specialty occupation" requires the theoretical and practical application of a body of specialized knowledge and the attainment of a Bachelor's degree or its equivalent in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Some examples of a "specialty occupation" include physicians, medical professionals, researchers, professors, teachers, architects, engineers, computer professionals, accountants, attorneys, among others.

How does one apply for H-1B status?

The H-1B process begins with the sponsoring U.S. employer filing a Labor Condition Application (LCA) with the Department of Labor, that attests: (1) the employer is paying at least the prevailing wage or actual wage, whichever is greater; (2) the working conditions of similarly employed workers will not be adversely affected; (3) there is no strike or lockout; and (4) the employer has notified its existing employees of the H-1B filing. The LCA attestations are designed to ensure that U.S. wages are not depressed by the hiring of a foreign worker, and that the foreign worker is not exploited by the U.S. employer. The U.S. Citizenship and Immigration Services (USCIS) will not approve an H-1B petition without a completed, signed, and certified LCA.

Once the LCA is certified, the sponsoring employer must file Form I-129, Petition for a Nonimmigrant Worker, with USCIS, along with Supplement H, the certified LCA, and any additional supporting documentation.

How long can an applicant hold H-1B status?

An applicant may hold H-1B status for a maximum period of six years, issued in increments of up to three years by USCIS. Following the maximum six-year period, an applicant must remain outside the U.S. for one year before becoming eligible to re-enter the U.S. on another H-1B visa. In certain circumstances, an applicant may receive extensions of H-1B status beyond the six years. These circumstances are discussed in more detail in the section that follows.

It is important to note that the maximum period allowable in H-1B status is based on time actually spent in the U.S. on H-1B status, and not on the validity of the H-1B visa.

Under what circumstances may an application extend his or her H-1B status beyond six years?

The American Competitiveness in the Twenty-First Century Act (AC21) provides that H-1B non-immigrant workers, who are the beneficiary of an approved employment-based I-140 petition, but who are unable to adjust status to that of a permanent resident due to per-country limits, may extend their H-1B non-immigrant status until the adjustment of status application has been adjudicated.

In addition, AC21 contains special provisions which require USCIS to grant H-1B extensions beyond the six-year maximum in cases of lengthy adjudications. Specifically, AC21 allows H-1B nonimmigrants with pending I-140s or Applications for Permanent Employment Certification (PERM) to extend their status beyond the six year maximum if 365 days or more have passed since the original filing date of their I-140 petition or PERM application. Extensions on this basis will be granted in one-year increments until a final decision is made on the immigrant visa petition or adjustment of status application.

H-1B employment

H-1B holders may only work for the petitioning U.S. employer, and only in the activities and work sites outlined in the H-1B petition. However, H-1B holders may be employed concurrently for more than one U.S. employer, provided that the second employer files and obtains approval of its own H-1B petition from USCIS.

My H-1B visa petition has been filed. May I begin working immediately?

As a general premise, work may not commence until the H-1B visa petition is approved. However, the INA allows foreign nationals who have previously been issued a visa or otherwise held H-1B status to accept new employment upon the filing of a new petition by a new employer, subject to final approval of the petition. If the petition is denied, work authorization ceases.

Can an H-1B applicant intend to immigrate permanently to the U.S.?

Most nonimmigrant visa classifications require an applicant to maintain a foreign residence abroad and demonstrate that they are entering the U.S. temporarily. However, USCIS regulations permit an applicant holding H-1B status to have "dual intent." Under the doctrine of dual intent, which has been recognized in immigration law since the passage of the Immigration Act of 1990, an applicant holding H-1B status is not barred from entering the U.S. if the applicant also intends to attain permanent residency at some point in the future. Accordingly, the filing of a PERM application or an employment-based immigrant petition will not lead to the denial of a future H-1B petition filed on behalf of the applicant.

What is the status of an H-1B holder’s spouse and child?

A spouse or unmarried, minor child of an H-1B holder is entitled to H-4 status and the same duration of stay as the principal H-1B holder. The spouse and minor child may not accept employment in the U.S., but may attend school. In order to work, family members must change status to a nonimmigrant category permitting employment.

NOTE: Keep in mind that the filing of an H-1B visa extension for the principal applicant does not automatically extend the status of the applicant's spouse and minor child.