H-1B Specialty Occupation Visa
H-1B Visa for Professionals
The H-1B is a temporary (non-immigrant) employer-sponsored visa for professional workers. The H-1B can be issued for up to 3 years, and then extended for an additional three years, for a total of six years in H-1B status. Thereafter, an employer must have started the green card process on behalf of the H-1B employee for extensions beyond this period.
The Twin Cities business immigration firm The Law Firm of Craig J. Peterson L.L.C. assists employers and employees worldwide who are seeking U.S. H-1B visas. We encourage you to contact us if you need legal advice regarding the H-1B visa process.
Which Jobs Qualify for H-1B?
For a successful H-1B petition, the job offered must qualify as a “specialty occupation.” A job may qualify as a specialty occupation in one of four ways:
- A Bachelor’s degree or equivalent is normally the minimum requirement for entry into the occupation;
- A Bachelor’s degree requirement is common to the industry in parallel positions among similar organizations, or the particular position is so complex that it can be performed only by an individual with at least a Bachelor’s degree;
- The employer normally requires a degree or its equivalent for the position; or
- The job’s duties are so specialized and complex that knowledge required to perform the duties is usually associated with a Bachelor’s or higher degree.
US Citizenship & Immigration Services is increasingly requiring more evidence that a job qualifies as a specialty occupation, even for jobs that in the past were commonly recognized as such. There has been no change in the law, but there has been a dramatic change in the government’s approach to adjudicating H-1B petitions. It is critical that an attorney preparing an H-1B petition have the experience and resources to hold US Citizenship & Immigration Services accountable to the proper and actual standards for adjudicating H-1B petitions.
The number of new H-1Bs available each year is 85,000. Of this number, 20,000 are reserved for those with U.S. Master’s degrees or higher. Each year the supply of new H-1B’s is inadequate to meet demand. More petitions are filed each year than can be approved.
USCIS conducts a lottery which requires pre-registration by employers seeking to file a new H-1B. The registration period occurs in March, and includes basic information about each individual the employer seeks to sponsor for an H-1B filing. After the lottery, USCIS notifies employers which individuals were selected, and H-1B petitions may then be submitted for those individuals. It is critical to begin considering H-1B planning well before the registration period opens.
A “new” H-1B is one involving a worker seeking an H-1B for the first time in the past 6 years. Extensions or amendments of existing H-1B, or changes of employer are not “new” H-1Bs and are therefore not subject to the cap. (But see changing from cap-exempt to cap-subject employer, below.) The Cap does not apply to H-1B employees who will work for or at a university or affiliated nonprofit or research institute, doing work related to the non-profit organization’s mission. If an H-1B employee currently works for an exempt employer, such as a university, and then wants to move to a cap-subject employer (most private sector organizations), the employee then becomes subject to the cap and will require one of the 85,000 visas.
Spouses and children under 21 of H-1B employees can accompany and remain in the U.S. with the H-1B worker on H-4 visas. If the H-1B spouse has either an approved I-140 Petition for Alien Worker, or is in the 7th year of an H-1B, based on underlying employment-based green card application, then the H-4 spouse or child can apply for work authorization. H-4 work authorization is a policy which began in the Obama administration. The Trump administration may seek to eliminate H-4 work authorization.
Employer Responsibilities when Sponsoring an H-1B Visa
The employer when sponsoring an H-1B undertakes certain obligations. Among these are the following:
- Paying the H-1B the required wage for the position, which is the higher of the actual wage (what the employer typically offers for the position) or the prevailing wage (as determined by the Department of Labor or a recognized alternative wage source) for the position;
- Maintaining a Public Access file containing the relevant required documents;
- Amending the H-1B when necessary, if there is a material change in job duties or job location; and
- Offering to provide the employee with the reasonable cost of airfare home, if the employer ends the H-1B employee’s employment prior to the end of the H-1B visa, and the H-1B worker returns home as a result.
How Our Twin Cities Immigration Attorney Can Help
The Law Firm of Craig J. Peterson L.L.C.’s founder has over 20 years’ experience preparing H-1Bs. Craig can help you assess whether the position offered and the employee’s qualifications are a good fit for an H-1B. With our H-1B filings, we provide support from start to finish for a successful H-1B Petition, as well as preparation of relevant documents for immigration compliance.
Based in Woodbury, our employment immigration firm works with employees and companies in the Twin Cities, across the United States and worldwide. We welcome you to contact The Law Firm of Craig J. Peterson L.L.C. for assistance with your immigration matter.