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Specialty Occupation Work Visas
It is the principal pathway for foreign professionals in specialty occupations to work in the United States, and for many, it is the first step on a longer journey toward a green card and permanent residence. The laws and regulations surrounding the H-1B change frequently, making experienced legal counsel essential.
What Is the H-1B Visa?
The H-1B visa allows foreign workers in specialty occupations to enter and work in the United States. Specialty occupations are those that require the theoretical and practical application of a body of highly specialised knowledge — and the attainment of at least a U.S.
bachelor’s degree, or its equivalent, in a specific field related to the occupation. Fields commonly qualifying for H-1B include information technology, engineering, architecture, medicine, health, education, law, accounting, finance, and many others.
Key H-1B Requirements
- The position must qualify as a specialty occupation requiring at least a bachelor’s degree in a specific discipline.
- The applicant must hold a U.S. bachelor’s degree in the required specialty — or a foreign degree equivalent — or a combination of education and experience amounting to the equivalent of such a degree.
- The petition must be filed by a qualifying U.S. employer — the H-1B is not self-petitioned.
- The employer must file a certified Labor Condition Application (LCA) with the U.S. Department of Labor before submitting the USCIS petition.
Duration and Extensions
H-1B status is initially granted for three years and may be extended in three-year increments for a total of six years. Extensions beyond six years are available in certain circumstances — most notably where an approved employment-based immigrant petition (I-140) has been pending for 365 days or more, or where the worker is the beneficiary of an approved I-140 and is waiting for an immigrant visa number to become available.
Dependants
Spouses and unmarried children under 21 may accompany an H-1B holder in H-4 dependent status. H-4 holders are not authorised to work unless they personally qualify for an independent work visa — though H-4 employment authorisation is available in certain circumstances to H-4 spouses of H-1B holders who have approved I-140 petitions or have been granted H-1B extensions beyond six years.
The Annual H-1B Cap and Lottery
The H-1B is subject to an annual numerical cap of 65,000 visas, with an additional 20,000 available for individuals holding a U.S. master’s degree or higher. Demand typically far exceeds supply, requiring a random electronic lottery to select which petitions may be filed. USCIS conducts the lottery each March for employment beginning October 1. Cap-exempt employers — including universities, affiliated non-profit research organisations, and government research organisations — may file H-1B petitions at any time without being subject to the cap.
H-1B Transfers and Portability
H-1B holders who have an approved I-140 or a pending adjustment of status application may transfer to a new employer who files a new H-1B petition on their behalf without waiting for that petition to be approved — a provision known as H-1B portability. Our attorneys advise on the nuances of portability to ensure that career transitions do not jeopardise either current status or pending green card applications.
