A specialty occupation visa, more commonly known as a H-1B visa, is a type of temporary visa that is issued to workers who have special training to perform a particular job. H-1B visas are primarily granted to nonimmigrants who are seeking entry to the United States on a temporary basis to do work for a specific U.S.-based employer.

For instance, international supermodels may apply for an H-1B visa to participate in a special event like New York Fashion Week.

In most cases, nonimmigrants who hold a H-1B visa will be permitted to remain in the United States for a period of up to three years, which may be extended to a maximum total of no longer than six years. Employers who sponsor H-1B visa holders will be liable for the cost of return transportation should they terminate employment before the period of authorized stay expires.

For example, imagine if a construction company in the United States hires a renowned architect from another country to work on a U.S.-based building project. The architect obtains a H-1B visa that is valid for three years.

After working on the project for only seven months into the three-year authorization period, the construction company fires the architect. The construction company would then need to pay for the costs of the architect to move back to their own country.

To learn more about the process of applying for an H-1B visa, you can visit the website for the United States Citizenship and Immigration Services (“USCIS”) agency and search for H-1B Specialty Occupation requirements. Alternatively, you can also contact a local immigration attorney for further advice regarding H-1B visas.

What are the Features of a Specialty Occupation?

As discussed above, a specialty occupation visa is a type of visa that is reserved for nonimmigrants who possess certain qualifications. For instance, the occupation must be one that requires a practical application of highly specialized knowledge. They must also have a minimum of a bachelor’s degree or higher within that specialized field.

Along with the degree requirement, the position being applied for must also satisfy at least one of the following elements in order to qualify as a specialty occupation:

  • The employer regularly requires a degree to hold this particular position;
  • The degree is a common requirement within the industry or the position is one that can only be performed by a person who holds a certain degree; and
  • The specific job duties associated with the position are so complex and specialized that only someone with a bachelor’s degree or higher would have the knowledge required to perform those duties.

If an applicant does not possess a bachelor’s degree, the equivalent of a bachelor’s degree, or some higher degree, they may still be able to qualify for an H-1B visa by submitting proof of one or more of the following:

  • Letters from previous employers or colleagues in the industry;
  • Recognition of their expertise through special awards or honors received; and
  • Authorship of published works on the specialty subject.

What are Some Examples of Jobs That Have Been Approved for these Visas?

Some examples of the types of jobs that have been previously eligible to apply for an H-1B visa include the following:

  • Architects;
  • Biologists;
  • Economists;
  • Scientists;
  • Physicians, nurses, dentists, surgeons, and psychologists;
  • Accountants and financial analysts;
  • Management consultants;
  • Foreign law advisors;
  • Journalists, editors, and technical writers;
  • IT and/or computer professionals;
  • Various kinds of engineers (e.g., software, civil, electrical, industrial, mechanical, etc.);
  • Data communication and network administrators;
  • Sales and distribution managers;
  • Primary and secondary school teachers; and
  • University and college professors.

What Does an Employer Have to Do?

Any employer looking to sponsor an H-1B worker must comply with a number of basic requirements before they can file a petition for an H-1B visa and officially hire an H-1B worker. Some steps that a U.S.-based employer will have to take may include:

  • They must prove that the position falls under the criteria set out by H-1B regulations;
  • Employers should prepare a detailed job description that contains the minimum education and experience requirements for the role;
  • An employer must determine whether the worker should be assigned a salary that comports with the “actual” or “prevailing” wage. The employer will be required to pay the amount set by whichever of the two wages is higher;
  • Depending on the position, the employer must also figure out which type of petition they will need to file on behalf of the H-1B worker. For example:

    • If an applicant is being hired for a specialty occupation or as a fashion model, then the employer will need to file a Labor Condition Application (“LCA”) with the United States Department of Labor (“DOL”).
    • On the other hand, all other positions will only require the employer to file Form I-129, Petition for a Nonimmigrant Worker, with the USCIS. It should be noted that employers petitioning for workers in specialty occupations or fashion models must also attach a DOL-certified LCA to their Form I-129 submission.
  • Employers should also be aware that they will need to pay some amount of filing fees in order to submit all petitions and supporting documents to the proper government authorities. Such filing fees may vary on a case-by-case basis.

Basically, the more information that an employer supplies, the better their chances are of being approved to hire an H-1B worker. Also, submitting evidence or documentation that proves there is a strong connection between the occupation and a worker’s required expertise, may reduce the need for further evidence, which in turn, can speed up the application process.

What about Students who are Interested in H-1B Status?

International students cannot apply directly for H-1B status. Instead, those looking to become full time students in the United States must apply for either an F-1 or M-1 visa, depending on what type of academic program they wish to attend. However, students who are interested in securing H-1B status in the future, should set themselves up in a manner that would enable them to qualify for this status once they graduate from university.

To do this, students attending colleges or universities in other countries should review the list of occupations that are eligible for H-1B status. This will give them an idea of the kinds of subjects they need to study or “major-in” while they are still in school.

For example, foreign computer professionals may qualify for H-1B status. In which case, an international student would need to major in computer science or another technology-related field. They should also try to secure internships or take other courses that would advance their knowledge of this field. This way if a U.S.-based employer wants to hire them for a job in the IT industry, they will be able to apply for an H-1B visa.

Should I Consult a Lawyer?

It is very important that an applicant understands all of the requirements needed to apply for and obtain an H-1B visa. Therefore, if you are a nonimmigrant worker or are an employee seeking to sponsor an employee for a specialty occupation visa, then you may want to consider contacting a local immigration attorney for further legal advice.

An experienced immigration attorney can walk you through the process to get an H-1B visa and can explain how a particular H-1B visa works. Your attorney can also help you apply for a visa extension and may be able to recommend a type of visa that is better suited to your needs.

In addition, if there is an issue with your H-1B visa or if you are asked to appear before an immigration law judge, your attorney can assist you in resolving any legal issues related to an H-1B visa as well as can provide legal representation in an immigration law court.