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.
Degree Requirements
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.
H-1B Lottery
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.
