H-1B Speciality Occupation Visas
In reality, H-1 visas are divided into several different categories depending on the type of work involved: the so-called "specialty occupations," employees working on Department of Defense Cooperative Research and Development Projects, fashion models, and registered nurses. Of those, the H-1B "specialty occupation" visa is the most commonly used visa.
"Specialty Occupation" requirement
To qualify as a "specialty occupation," the job must require one of the following:
- Proof that a bachelor’s degree (or higher) or its equivalent is normally the minimum entry requirement for the position;
- 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;
- 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 a bachelor’s or higher degree
Requirements for prospective H-1B employees
The intended H-1B employee must meet one of the following requirements:
- Proof that the prospective employee has completed a U.S. bachelor’s degree (or higher) required by the specific specialty occupation from an accredited college or university;
- The employee holds a foreign degree that is the equivalent to a U.S. bachelor’s degree (or higher) in the specialty occupation;
- The employee holds an unrestricted state license, registration, or certification that authorizes the full practice of the specialty occupation and to be engaged in that specialty in the state of intended employment; or
- The employee has education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and has recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
One of the most frustrating parts of the H-1B system is the annual numerical limit -- the "cap" -- of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the 65,000 visa cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Period of Stay
An H-1B nonimmigrant may be admitted initially for a period of up to three years. This time period may be extended, but generally cannot go beyond a total of six years. Some exceptions to the six-year rule are possible under the American Competitiveness in the Twenty-First Century Act (AC21).
Family of H-1B Visa Holders
An H-1B holder's spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Currently, family members in the H-4 nonimmigrant classification may not engage in employment in the United States, though this rule may change in the future.
Both the principal H-1B holder and H-4 derivative beneficiaries are permitted to seek immigration options leading to permanent residency (also known as obtaining a "green card").
Application Process and Employer Requirements
Because of the complex regulatory rules and requirements surrounding H-1B visas, employers are very strongly encouraged to retain immigration counsel for H-1B matters. Employers must observe strict notice requirements and stay in full compliance with Department of Labor regulations on working conditions, file retention, and other matters.