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H-1B Visa - Specialty Workers

H-1B visas are reserved for foreign nationals who come to the United States to work temporarily in a specialty occupation for US employers. 8 C.F.R. Section 214.2(h)(4)(iii)(A) defines the standard of "Specialty Occupation" with the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. Degree requirement is common in industry in parallel positions among similar organizations or, in the alternative, the particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. Employer normally requires a degree or its equivalent for the position; or
  4. Nature of specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher.

The following are some of the professional occupations previously identified by the USCIS for H-1B purposes: accountant, chef, computer programmer, computer database administrator, dietician, industrial designer, journalist, market research analyst, medical technologist, technical writer, vocational counselor and others.

Every fiscal year 65,000 visas are allocated for persons with at least bachelor's degree or equivalent applying for H-1B visas and 20,000 additional visas are reserved for persons who obtained a master's or higher degree from a U.S. institution of higher education. An H-1B employee starts employment for the U.S. employer starting October 1 of each year and the period of employment is authorized for three years. At the end of three years the H-1B employee can apply for additional three years of employment with the same employer upon filing an extension of status request or request change of employer.

The position for the H-1B employee must require the specific knowledge which can be only obtained through studies at a higher education. Moreover, the position should require the specific studies closely related to the position, rather than merely obtaining of the bachelor's degree. Specialty occupation is for the professionals who require at least a bachelor's degree or its equivalent.

H-1B employees can have dual intent for applying for both immigrant and nonimmigrant visas while they stay in the United States in H-1B status. For example, an H-1B employee can have approved I-140 petition filed on their behalf and waiting for the priority date to become current while they are still working for the employer in H-1B status. Admission for H-1B status is 6 years. However, under special circumstances the H-1B employee may extend his status beyond the six years by one year increments or three years at a time according to the rules under INA Section 106(a) and 104(c).

Attorneys handling and filing H-1B petitions on their clients behalf should be careful in properly following the applicable rules under the U.S. Department of Labor for filing of the Labor Condition Application. This application requires implementation of the proper prevailing wage for the job position. Also, the qualifications of the employer should be carefully taken into consideration before filing of the H-1B petition.



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