H-1B Specialty Occupations Visa

The H-1B visa is available for individuals coming to the U.S. to perform specialty occupations. The job must be related to the individual's field of study.

To qualify as a specialty occupation, the job must meet one of the following criteria:

  1. Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
  2. The 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.
  3. The employer normally requires a degree or its equivalent for the position.
  4. 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.

Annual Cap

There is an annual cap of 65,000 H-1B visas that may be issued, though certain petitions are exempt from the cap. The quota fills up very quickly, so it is crucial to plan ahead when you are dealing with a petition that is subject to the cap. The cap numbers refresh on October 1, the start of the U.S. government's fiscal year. As H-1B petitions may be filed up to 6 months in advance of the job's start date, this generally means that April 1 is the crucial date for filing of the petition.

Because substantially more petitions are filed than there are visas available, USCIS conducts a computerized "lottery" that randomly selects petitions for further processing. The cases that are not selected are returned with the fees.

Labor Condition Application

Employers who wish to petition for an H-1B employee must file a Labor Condition Application (LCA) with the Department of Labor. The LCA contains several attestations by the employer, including a commitment to pay the prevailing wage for the position in the geographic area where it is located.

Time Limit

An H-1B worker may be admitted to the U.S. for a period of 3 years. The time period may be extended, but a worker generally may not surpass 6 years total in H-1B status. Time spent outside the U.S. during this period does not count towards the 6-year limit and may be "recaptured." There are, however, certain exceptions to the six-year limit under the American Competitiveness in the 21st Century Act (AC21).

Basic Steps

The basic steps of the H-1B application process are:

  1. Employer submits LCA to DOL for certification.
  2. Employer submits approved LCA, completed Form I-129, and supporting documentation to USCIS with appropriate fees.
  3. After I-129 approval, worker applies for visa at consulate abroad.

How We Can Help

  • We prepare and file the Labor Condition Application with the Department of Labor.
  • We prepare Form I-129 with all supporting documentation and a detailed written description of your employee's qualifications and eligibility for the visa.
  • We track the case through the consular stage until your employee arrives in the U.S.
  • We handle extensions of H-1B status.
  • If you are interested in pursuing a green card for your H-1B employee, we can assist you through that process. Please see our page on PERM Labor Certification for more information.

We welcome you to contact the Brian M. Wang | Whiteman Osterman & Hanna LLP to schedule a consultation about how we may be of service in your immigration matter. Based in the Albany, NY Capital District area, we assist clients throughout New York, in all 50 states, and worldwide with United States immigration law.

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