Specialty Occupations H-1B

For Individuals Who Seek Temporary Entry into
United States in a Specialty Occupation as a Professional

  1. Eligibility Requirements
  2. Duration of the H-1B Visa
  3. Application for Permanent Residency
  4. Eligibility of Spouse and Children
  5. Discussion on the Key Provisions of the “American Competitiveness in the 21st Century Act of 2000”
  6. Other Temporary Work Visas

Eligibility Requirements

Individuals who seek temporary entry into the U.S. in a specialty occupation as a professional may be eligible for an H-1B visa. Some examples of “specialty occupations” include accountant, computer analyst, engineer, financial analyst, scientist, architect or lawyer. The petition can be approved with a combination of college or university course work plus three years work experience for each year of university education missing. Together this would be considered the equivalent to a four-year bachelor’s degree.

The first step in obtaining an H-1B visa is an offer of temporary employment in the area of specialty in which the applicant was trained. Employment in support of an H-1B petition may be either full- time or part-time.

For those foreign nationals who require an H-1B visa in order to work in a specialty occupation, the petition is requested by the employer and must meet the following conditions:

  1. Approval of a Labor Condition Application (LCA) from the Department of Labor.
  2. The proposed job qualifies as a specialty occupation.
  3. U.S. college degree (bachelor’s, master’s or Ph.D.) and/or foreign degree with evidence that it is equivalent to a U.S. baccalaureate degree or higher. Evidence of education, specialized training, or experience that is equivalent to a U.S. baccalaureate degree may also be used to fulfill this requirement.
  4. Issuance of any required state licenses to practice the occupation.
  5. Either a written contract between the employer and the foreign national or a summary of the terms under which the he or she will be employed if there is no written agreement.

Duration of the H-1B Visa

Initially, the H-1B visa is valid for up to three years. The visa may be extended once for an additional three years except under certain conditions provided by an immigration law that may extend H-1Bs beyond six years for those awaiting green card issuance. It is not required that the foreign national worker remain with one employer during this six-year period, as long as a new H-1B petition is filed and approved for each new employer. However, whether there is one employer or several, the six-year limitation is not waived except as noted below. These changes resulting from the new immigration law are discussed under the “American Competitiveness in the 21st Century Act of 2000.” (AC21)

Application for Permanent Residency

The H-1B holder may apply for permanent residency at any time during his or her stay in the United States. It is advised however, that the process of adjusting status should be initiated as soon as possible as the process may take several years and if the six-year limit is met, the foreign national may have to wait outside the United States for the immigrant visa approval.

Please see discussion below on the “American Competitiveness in the 21st Century Act of 2000.”

Eligibility of Spouse and Children

A spouse or unmarried minor child of an H-1B visa holder is entitled to come to the United States for the same amount of time as the visa holder. While they may not work in the U.S, unless they independently qualify for work authorization, they may attend school in the U.S.

American Competitiveness in the 21 Century Act of 2000 (AC21)

On October 17, 2000 President Clinton signed the “American Competitiveness in the 21st Century Act of 2000.” This legislation ameliorates the hardships incurred by USCIS backlogs of three to four or more years in processing permanent residency applications.

Key Provisions of AC21 are:

· H-1B cap: Provides an H-1B cap of 65,000 visas for each fiscal year.  The first 20,000 petitions filed on behalf of beneficiaries with a US master’s degree or higher are exempt from the cap.

· Exemption from the cap: Individuals employed at higher educational institutions, and their related or affiliated non-profit entities, and individuals employed by non-profit research organizations or governmental research organizations are not counted toward the H-1B cap.

· Portability of H-1B status: Previously, an alien who wishes to change jobs cannot start working legally for the new employer until a new H-1 petition is both filed and approved by USCIS, a process which can take two to four months. With AC21, a worker who currently holds H-1B status may change jobs upon the filing of a new petition, as long as the individual is in lawful status and has not engaged in unauthorized employment since his or her last lawful admission.

Note: Only those who have held H-1B will benefit from the grant of immediate work authorization. This provision will not apply to initial H-1 applicants who must wait for petition approval before commencing employment.

Extensions beyond six years for H-1Bs awaiting green card issuance: Previously, H-1B beneficiaries who had reached their six-year maximum stay, and have not achieved a new work permit based on a permanent resident application, must wait overseas until permanent residency is issued, or until the worker becomes eligible for a new six-year period of H-1B status by spending one year abroad. AC21 provides that H-1B non-immigrants whose labor certification, or I-140 USCIS petition, has been pending for 365 days, may obtain extensions of their H-1B status beyond the six-year maximum, in one year increments, until a decision has been made on the permanent resident application.

Aliens from certain countries, primarily the People’s Republic of China and India, have to wait two to three times as long as nationals of other countries to achieve permanent residency due to the rapid exhaustions of their country’s quotas. AC21 provides that individuals who are currently unable to complete processing of the permanent resident application because of the per-country limitations may receive extensions of H-1B status in three-year increments until the permanent resident application has been decided.

Increased job flexibility for applicants for permanent residency: Currently, most employment-based applicants must remain with the sponsoring employer, and stay in the same job and geographic location until permanent residency is granted. If an alien is promoted, transferred to another geographic site, or wishes to change to another employer, a new application must be filed. Under AC21, the application becomes portable(the alien may change jobs or employers without affecting the new application) where the last stage  adjustment of status application has been pending for 180 days or more as long as the new job is in the same occupation as the job for which the initial petition was filed.