H1B Specialty Occupation

Introduction

H1B nonimmigrant visa classification is available for individuals to temporarily perform services in a specialty occupation.

Who can submit H1B Specialty Occupation Petition?

U.S. employer with an IRS tax identification number (FEIN) and who will have an employer-employee relationship with the H1B employee may file the H1B petition on behalf of the H1B worker to perform work in the U.S. Employer-employee relationship typically exists where the employer may hire, pay, fire, supervise or otherwise control the work of the employee

H1B employer must obtain a certified labor condition application (LCA) from the Department of Labor as a precondition to H1B petition. H1B employer must attest and comply with the following terms of the labor condition application:

Wages - Pay the prevailing wage or actual wage (whichever is higher) and pay for non-productive time.
Working Conditions – Provide working conditions which will not adversely affect the working conditions of U.S. workers similarly employed.
Strike, Lockout, or Work Stoppage – Employer is not involved in a strike, lockout, or work stoppage in the occupational classification in the area(s) of intended employment.
Notice – Notice of the LCA filing is provided to the bargaining representative or workers in the occupation at the place(s) of employment either by electronic or physical posting.

H1B employer is liable for the reasonable costs of return transportation of the H1B worker abroad if the H1B worker is dismissed from employment by the employer before the end of the period of authorized admission. H1B employer is not responsible for the costs of return transportation if the H1B worker voluntarily resigns.

What are the key requirements of a H1B Specialty Occupation Petition?

H1B position must be a specialty occupation position.

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields (such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts) and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
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;
The employer normally requires a degree or its equivalent for the position; or
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.

H1B worker qualifications. The H1B worker must meet one of the following criteria:

Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
Hold an unrestricted state license, registration or certification which authorizes him or her 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 completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

How long can I stay in the U.S. under the H1B status?

Initial H1B period can be up to three years. H1B time period may be extended, but generally cannot go beyond a total of six years.

In situations covered under AC21, H1B period may be extended beyond six years. These include:

H1B status may be extended in 1-year increments where a PERM labor certification or I-140 immigrant petition has been pending for at least 365 days.
H1B status may be extended in 3-year increments where the H1B worker is a beneficiary of an approved EB1/2/3 immigrant visa petition but cannot apply for adjustment of status or immigrant visa due to the per country limitation visa backlog.

Additional Resources

1. H1B Cap & Lottery

Every fiscal year (starting at October), there are 65,000 regular cap H1B slots available (reduced by Chile and Singapore H1B1 visas).

In addition to the regular H1B, 20,000 advance degree H1B slots are available for H1B workers who earned a master’s or higher degree from a U.S. institution of higher education.

85,000 new H1B slots per year are not sufficient to meet the demand for H1B positions for U.S. employers. As a result, USCIS performs a random H1B lottery to determine which cases will be reviewed by the USCIS.

In 2020, USCIS implemented a new H1B lottery preregistration process. Under this new process, prospective H1B employer registered for the H1B lottery between March 1 and March 20. USCIS performed the random selection lottery and notified the selected registrants by early April. Selected H1B employer typically has 90 days to submit the H1B petition.

2. Cap-Gap – Extension of Post Completion OPT and F-1 Status under H1B Cap-Gap

F-1 students completing their degree program can apply for a 12-month post-completion optional practical training (OPT) to start as late as 60 days after the end of their program. Most programs end in May, which means OPT can start as late as July and end 12 months later.

However, the earliest start date for a cap-subject H1B employment is October 1, creating a status gap between the end of F-1 and the start of H1B. Cap-gap provision fixes this status gap problem.

Once the H1B petition is submitted to the USCIS, the H1B cap gap provision automatically extends the F-1 student’s duration of status (D/S) and the OPT employment authorization until October 1. However, if the H1B petition is rejected, denied, revoked or withdrawn before October 1, the cap gap provision will automatically terminate.

3. Cap-Exempt H1B

Not all H1B petitions are subject to the annual H1B cap. Following H1B petitions are exempt from the H1B cap and lottery:

Concurrent H-1B employment
H1B extensions
H1B employment at an institution of higher education or a related or affiliated nonprofit entity, or a nonprofit research organization or a governmental research organization.