H-1B Visa: Specialty Occupation

       The H Visa is for temporary workers and trainees.  The most common H visa is the H-1B which is for “specialty occupations.”  A specialty occupation is one that requires at least a bachelor’s degree or its equivalent in a specific field of study as a minimum for entry into a particular occupation.  The “equivalent” means that a person must have three years of progressive work experience in the field for every year of education.  Thus, to have the equivalent of a four-year bachelor’s degree, you must have at least 12 years of progressive work experience in your specialty field.  The job itself must also be one for which a bachelor’s degree in a specific field is normally required.  Unlike most of the other temporary visas, an H-1B nonimmigrant is permitted to pursue Lawful Permanent Residence while in the U.S. in H-1B status.

       You must have an employer sponsor you for an H-1B visa.  In order to do so, the employer must obtain a certified Labor Condition Application (“LCA”) from the Department of Labor.  The LCA contains certain attestations of the employer related to wage, working conditions, strikes and lockouts, and notice to other employees.

       There is an annual cap of 65,000 H-1B visas per year.  An additional 20,000 visas are available for foreign nationals who have obtained a master’s degree at a U.S. university.  Quotas are usually exhausted relatively quickly, and so it is important to get H-1B petitions filed as close to the beginning of the filing period as possible if you will be subject to this quota.  The initial H-1B admission is typically for a duration of three years, and it may be extended for up to a maximum of six years.  There are exceptions to this for an H-1B who also has a labor certification or employment-based visa petition pending for more than one year prior to hitting the 6-year mark.  The exception to the 6 year maximum allows extensions of H-1B status in one year increments until the application or petition is approved or a visa become available to the immigrant. Additionally, if the H-1B has an approved visa petition, but is simply waiting for an immigrant visa to become available, he also may benefit from the exception and can obtain H-1B extensions in 3 year increments.

       An H-1B nonimmigrant who wishes to work for a new employer may be able to “port.”  Porting is a process by which nonimmigrants who are already in H-1B status are permitted to switch employers as soon as an approvable H-1B petition is filed by the new employer.  This is highly beneficial in that you do not need to wait for the new petition to be approved before you can begin working for the new employer. 

       If you are interested in obtaining an H-1B visa or would like more information about the H-1B or other H visas, please contact our office.

William J. Flynn, III is a member of the Firm's Board of Directors and leader of the Immigration Practice Group. His practice includes a large immigration practice representing foreign nationals and U.S. corporations that employ foreign nationals. He represents clients before the U.S. Department of Homeland Security, U.S. Department of Labor and U.S. Department of State. Mr. Flynn is Board Certified by The Florida Bar in Immigration and Nationality Law. Mr. Flynn is AV peer review rated by Martindale-Hubbell. He received his B.A. from Georgetown University and his J.D. and M.B.A. degrees from the State University of New York.