H-1B Specialty Occupation
An H-1B is a non-immigrant visa classification for individuals working in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of highly specialized knowledge requiring a minimum of a Bachelor’s degree or its equivalent.
H-1B status allows for “dual intent,” which means the H-1B worker can intend to seek permanent residence in the U.S. and is not required to maintain a foreign residence.
In order to qualify for an H-1B visa, the following requirements must be met:
• The job is in a specialty occupation requiring a minimum of a Bachelor’s degree or its equivalent.
• The applicant possesses a minimum of a Bachelor’s degree or its equivalent in the specialty occupation.
• The employer must pay the minimum prevailing wage and file a Labor Condition Application (LCA) with the Department of Labor attesting to the payment of the prevailing wage and certain employment conditions.
The H-1B classification is subject to an annual quota (“H-1B cap”) where there is a limit of 65,000 H-1B petitions per year and an additional 20,000 is reserved for individuals who have earned a U.S. Master’s degree or higher.
The following H-1B petitions do not count against the annual H-1B cap:
• Petition for H-1B extension of status;
• Petition sponsored by institutions of higher education (or a related or affiliated non-profit entity), governmental research organizations, or non-profit research organizations;
• Petition for concurrent employment where the applicant is currently in H-1B status;
• Petition to change employers where the applicant is currently in H-1B status and was previously subject to the H-1B quota;
• Petition by an applicant who had previously held H-1B status in the past six years and was subject to the H-1B quota.
H-1B status can be initially granted for up to three years and extended for another three years for a maximum duration of 6 years. Extensions beyond the 6 years can be granted in one-year increments to individuals who have filed either a Labor Certification Application or an I-140 immigrant petition 365 days before the expiration of their six-year limit. Extensions can be granted in three year increments to individuals with an approved I-140 immigrant petition who are unable to file for Adjustment of Status because an immigrant visa is currently not available (i.e. priority date is not current under their immigrant visa category).
Dependents, including spouses and unmarried children under 21 years of age, are eligible for H-4 status. Dependents may be eligible for employment authorization under the H-4 classification if the principal H-1B spouse meets one of the following requirements:
• Is the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker; or
• Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).