An employer can sponsor an employee for an H-1B visa to temporarily work in the United States in a specialty occupation. A specialty occupation is:
An occupation which requires theoretical and practical application of a body of highly specialized knowledge . . . including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
The employee must have at least a Bachelor’s degree or the equivalent in a specific specialty. Examples of what is equivalent to a Bachelor’s degree could be that the degree requirement is common to the industry, the job is so complex or unique it can only be performed by somebody with a degree, the employer normally requires a degree, or the duties are specialized and complex. If the employee has a foreign degree, it must be evaluated by an educational credentialing organization that determines it to be at least equivalent to a U.S. Bachelor’s degree. Specialized training and progressive experience can be equivalent to a Bachelor’s degree.
Period of Stay
The initial period of stay is valid up to three years, depending on the dates chosen in the Labor Condition Application (LCA). The total period of H-1B status is six years.
However, under the AC21 law, individuals can renew their H-1B status beyond the six years in one-year increments if their PERM labor certification or Form I-140 green card petition was filed at least 365 days prior to the completion of the six-year limit. Individuals whose I-140 has been approved, but their priority date is not current, they may apply for extensions of H-1B status in three-year increments; there are no limits to the number of extensions.
Labor Condition Application
The first step is to get a Labor Condition Application certified by the Department of Labor. In the LCA, the employer attests that there is no strike or lockout; the working conditions will not adversely affect U.S. workers; the employer will pay the greater of the prevailing or actual wages, notice of the filing of the LCA has been given to other employees or the bargaining representative; and if the employer is H-1B dependent, recruitment and non-displacement attestations may apply.
Congress caps the number of H-1Bs that can be issued annually at 85,000. Of those, 20,000 H-1B visas are available for individuals with a master’s degree or higher from a U.S. university. Of the 65,000 H-1B visas reserved for individuals with a bachelor’s degree or higher, 6,800 are reserved for Chileans and Singaporeans (H-1B1 visas).
Because demand for H-1B visas far outstrips the supply, U.S. Citizenship and Immigration Services (USCIS) uses a random, electronic lottery system to select who can apply for an H-1B. Starting in 2020, USCIS began requiring H-1B employer sponsors to pay a $10 non-refundable fee to register each H-1B candidate between March 1 – 20. By March 31, USCIS will notify those employer sponsors whose H-1B candidates have been selected to apply for an H-1B visa; H-1B petitions are due by June 30.
Some H-1Bs are not subject to the cap. If the petitioner is an institution of higher education, a nonprofit associated with an institution of higher education, a nonprofit research organization, or a government research organization, the petition is not subject to the lottery process.
Work Permits for H-4 Spouses
H-4 spouses now have the right to work in specific situations. If the H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Worker (one of the steps in the green card process), or, has been granted an extension under the law AC21, the H-4 spouse can apply for an Employment Authorization Document (EAD) to have permission to work.