How to Obtain and Qualify for an H-1B Specialty Occupation Visa
Qualifying and obtaining an H1-B Visa is a complex and fact specific process and the information below is a general overview. Please consult with an attorney at Theta Law Firm with your specific facts. An attorney is vital to help guide an employee and their family through the process of obtaining an H1-B Visa in a timely fashion that will not disrupt or interfere with your life, career, or business.
Is the H-1B Specialty Occupation Visa for me?
The H-1B classification is appropriate for those who are planning on coming to the United States to perform services in a specialty occupation, services relating to a Department of Defense (DOD) cooperative research and development project or co-production project, or to perform services as a fashion model who is of distinguished merit and ability. If interested in H1-B information relating to a DOD project or as a fashion model, consult with an attorney at Theta Law Firm to receive vital case-specific information regarding the Visa process.
The below information will be a general overview of what is needed if an employer is interested in obtaining the specialty occupation services of an individual outside of the United States.
A specialty occupation is defined by statute as:
"an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, 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".
General Requirements For H-1B Applications Involving Specialty Occupations
1. Before filing a petition for H-1B classification in a specialty occupation, the employer shall obtain a certification from the Department of Labor that it has filed a labor condition application (LCA) in the occupational specialty in which the employee(s) will be employed.
2. If all of the beneficiaries covered by an H-1B labor condition application have not been identified at the time a petition is filed, petitions for newly identified beneficiaries may be filed at any time during the validity of the labor condition application using photocopies of the same application. Each petition must refer by file number to all previously approved petitions for that labor condition application.
3. When petitions have been approved for the total number of workers specified in the labor condition application, substitution of aliens against previously approved openings shall not be made. A new labor condition application is required at that point.
There are other requirements that depend on a case-by-case analysis. Please contact a lawyer at Theta Law Firm. An employer interested in bringing in employees through the H-1B process would be advised to seek the counsel of an attorney to speed up and ease the process.
Job Requirement to Qualify as Specialty Occupation for Purposes of H-1B Visa
The job that the employee is seeking for the H-1B Visa must meet one of the following criteria to qualify as a specialty occupation:
- At least a bachelor's degree or its equivalent is normally the minimum entry requirement for the position;
- A degree requirement for the job is common to the industry or 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 at least a bachelor's degree.
For an employee to qualify to accept a job offer in a specialty occupation for purposes of an H-1B visa that employee must meet one of the following criteria:
- Have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation;
- Hold an unrestricted state license, registration, or certification which authorizes the employee to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
1. Receiving an evaluation from an official who has authority to grant college-level credit for training and/or experience in the particular specialty (the visa is being applied for) at an accredited college or university which has a program for granting such credit based on an individual's training and/or work experience;
2. The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program, or Program on Noncollegiate Sponsored Instruction;
3. An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;
4. Evidence of certification or registration from a nationally-recognized professional association or society for the particular specialty associated with the H1-B visa applicant that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;
5. A determination by the USCIS (United States Citizenship and Immigration Service) that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the applicant lacks. For equivalence to an advanced degree, the applicant must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the applicant must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the applicants training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the applicant's experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the applicant has recognition of expertise in the specialty evidenced by at least one type of documentation such as:
a. Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
b. Membership in a recognized foreign or United States association or society in the specialty occupation;
c. Published material by or about the alien in professional publications, trade journals, books, or major newspapers;
d. Licensure or registration to practice the specialty occupation in a foreign country; or
e. Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.
The following are H1-B petition filing requirements in order to obtain an H-1B Specialty Occupation Visa:
1. The employer must file an approved Form ETA-9035, Labor Condition Application
2. The employer must file Form I-129, Petition for a Nonimmigrant Worker
a. Attached should be included all documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation; and
b. Affidavits or declarations made under penalty of perjury submitted by present or former employers or recognized authorities certifying as to the recognition and expertise of the employee and describing in factual terms the employees ability and expertise as well as that of the employer and how the person writing the affidavit acquired this information.
4. If an occupation requires a state or local license for the employee to fully be able to perform the duties of the job, the employee seeking an H-1B Visa must obtain that license prior to being approved for the Visa in order to be found qualified to enter the United States and working immediately in that job
5. Filing fees
Length of Stay
Through the H1-B status, the employee is eligible for a three year stay. That period may be extended, but generally no longer than six years (there are some exceptions). Contact an attorney at Theta Law Firm for more specific information as to whether or not you are eligible for an extension and what may be done to better your chances of being eligible.
Family of H-1B Visa Holders
A spouse and/or unmarried child under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members accompanying an H-1B visa employee under the H-4 nonimmigrant classification may not work in the United States.
More information may be found directly on the USCIS website: http://www.uscis.gov/.
 For more information please refer to: 8 CFR § 214.2(h)(4)(iii)(A).
 Form I-129, Petition for a Nonimmigrant Worker, may be found at http://www.uscis.gov/sites/default/files/files/form/i-129.pdf.
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