The H-1B visa is among several categories of visas available to U.S. employers who wish to temporarily employ foreign nationals in the U.S. H-1B professionals are classified as such by USCIS if they meet the statutory definition of a "specialty occupation". At the minimum, the H-1B beneficiary should have a bachelor's degree (or its equivalent*) and a valid job offer in the U.S. within the specialty field. The key issues for H-1B eligibility are: (a) whether the position is a specialty occupation, and (b) whether the beneficiary meets the requirements for the specialty occupation.
THE CRITERIA OF A SPECIALTY OCCUPATION
To establish a "specialty occupation", one or more of the following criteria must be met:
- A bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position being offered;
- The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a bachelor's 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.
Note: The required degree must be in a specialty field. Occupations staffed with personnel having degrees in a variety of liberal arts may be denied H-1B status. Similarly, positions normally staffed by persons with a degree in general field, such as bachelor of arts in general education or philosophy, may be challenged by the USCIS. The basic idea is that the focused curriculum of the degree should supply the knowledge and skill necessary to perform a specific job.
QUALIFYING FOR A SPECIALTY OCCUPATION
Generally, to satisfy the legal requirements of performing in a specialty occupation, the beneficiary will need:
- Full state licensure, if required for practice in the state;
- Completion of a U.S. bachelor's or (**) higher degree or its equivalent in the specific specialty or a related field; or
- Education, training, or experience in the specialty equivalent to the completion of such degree.
The H-1B is a temporary visa; thus, the activities to be performed must be temporary in nature. A schedule of events and/or employment agreement is often required. Generally, the initial H-1B status is granted for up to three years, followed by a three-year extension.
Spouses and minor children of H-1B nonimmigrants can apply for H-4 status with the same period of admission as the H-1B holder. However, they may not work in the U.S. unless granted employment authorization through alternate means.
Regular processing usually takes three to seven months depending where the petition is filed. However, USCIS offers a Premium Processing service (for an additional $1,225 fee) which ensures processing within 15 business days. If the H-1B beneficiary is residing abroad he or she will have to apply for the actual H-1B visa at the U.S. Consulate before being granted entry into the U.S. Thus, processing times may vary depending on the individual petition.
The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012.
USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.
FY 2014 H-1B Cap Count
On April 1, 2013, USCIS will begin accepting H-1B petitions for FY2014. Root Law Group recommends starting the H-1B application process as soon as possible. The pace at which USCIS reached the cap in 2010 and 2011 was relatively slow as compared to prior years when the economy was more robust. However, as noted above, the cap in 2012 was reached within a couple of months and many practitioners are predicting the cap for FY2014 will be reached even faster in 2013.
Contact Root Law Group for a consultation regarding H-1B Specialty Occupation visas.
(*) Equivalency to a bachelor's degree can be demonstrated by past work experience in progressively responsible positions relating to the specialty.
(**)Some positions, such as research scientists, may require an advanced degree as a minimum entry requirement.