An H-1B temporary worker is an alien admitted to the United States to perform services in a “specialty occupation”.
The H-1B nonimmigrant classification is a vehicle through which qualified aliens may seek admission to the United States on a temporary basis to work in their fields of expertise. Prior to employing an H-1B temporary worker, a U.S. employer must first file an H-1B petition with USCIS. However, while USCIS is responsible for evaluating an alien’s qualifications for the H-1B classification, approval of an H-1B petition does not equate to an admission of the alien to the U.S. in H-1B status.
The Department of State (DOS) plays a vital role in the H-1B admission process. Prior to filing the H-1B petition with USCIS, the U.S. employer must first file a Labor Condition Application (LCA) with the Department of Labor (DOL) specifying the job, salary, length and geographic location of employment. In addition, the employer must agree to pay the alien the greater of the actual or prevailing wage for the position. Once DOL approves the LCA, the U.S. employer may file the H-1B petition with USCIS.
What is a Specialty Occupation?
To qualify as a specialty occupation, the position must meet one of the following requirements:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The degree requirement is common to the industry or, in the alternative, the position 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 attainment of a bachelor’s or higher degree. See 8 C.F.R. § 214.2(h)(4)(iii)(A).
In order to perform services in a specialty occupation, an alien must meet one of the following criteria:
- Hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;
- Possess a foreign degree determined to be equivalent to a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;
- Have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or
- Have, as determined by USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. Specialty occupations may include but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants.
What is the duration of H1B Visa?
An alien may be admitted to the United States in H-1B status for a maximum period of six years; however, the H-1B petition may only be approved for a maximum period of three years. On expiry of the first H1B petition, the employer needs to file a petition seeking an extension for remaining period to a maximum of three years not exceeding a maximum permissible 6 years limit. However, on expiry of such 6-year limit, an H1B may be extended for one-year increments if the beneficiary is subject of labor condition application that was filed more than 365 days prior to the expiry of his 6-year permissible limit. H1B may be extended for another three years if immigration petition filed on behalf of the beneficiary is approved before the expiry of such 6-year permissible limit.
When can H-1B Cap petition be filed?
H-1B petitions can be filed six months in advance of the requested start date. Therefore, petitions seeking an October 1 start date can be filed no sooner than April 1. This is when the majority of H-1B cap-subject petitions are filed. Conversely, petitions that are cap exempt may be filed at any time during the year, dependent on the petitioner’s need.
What is a part-time H-1B?
An alien can work simultaneously with two employers on the H1B status on the basis of part-time H1B petitions approved for both the employers.