H-1B Nonimmigrant Visa – Specialty Occupation

An H-1B Nonimmigrant Visa is an employment based visa classification available for foreign nationals who will be employed in a specialty occupation with a U.S. employer. A U.S. employer (Petitioner) must file with and have approved by the U.S. Citizenship and Immigration Services (USCIS) an I-129 Petition for Nonimmigrant Worker in order for a foreign national to apply for an H-1B visa at a U.S. Consulate.

H-1B Visa Key Requirements

Certain key requirements must be met by the foreign national and the U.S. employer:

The foreign national must have an employer-employee relationship with the petitioning U.S. employer.  In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B visa holder. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the H-1B visa holder’s employment.

The job must qualify as a specialty occupation by meeting one of the following criteria:

• A bachelor’s degree or higher degree or it’s equivalent is normally the minimum requirement for the particular position;
• The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
• 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.
• The job must be in a specialty occupation related to the foreign national’s field of study.

The foreign national worker must have at least a bachelor’s degree or higher.  A degree is from a foreign university must be equivalent to a U.S. degree.

An H-1B visa also requires that the employer pay the foreign national worker at least the actual or prevailing wage for your occupation, whichever is higher. The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location.  Prior to submitting an I-129 Petition to USCIS, the employer must obtain a Prevailing Wage Determination from the DOL.

An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits. The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The cap of the number of H-1B visas is set by the U.S. Congress.  The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

The immigration lawyers at Allen & Pinnix have over 35 years experience representing U.S. employers who need to hire qualified foreign workers in a specialty occupation.  The attorneys will evaluate the job description to determine if it qualifies as a specialty occupation and the foreign national’s academic degree(s), obtain a Prevailing Wage Survey and advise the employer whether the key requirements for an H-1B visa are met.  Schedule a confidential consultation or call our office at 919.755.0505.