The H-1B non-immigrant visa is for individuals offered U.S. employment in a specialty occupation. A specialty occupation requires a Bachelor’s degree, or an equivalent combination of education and/or experience, in a specific field. This category has three subcategories: the H-1B1 category – which is for specialty occupation workers who are citizens of Chile or Singapore, the H-1B2 category – which is for individuals providing services for a Department of Defense (DOD) cooperative research and development project, and the H-1B3 category – which is for fashion models of distinguished merit or ability.
General Qualifications of an H-1B Specialty Occupation Worker
To qualify for H-1B classification, the individual must:
- Hold a U.S. Bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree that is equivalent to a U.S. Bachelor’s or higher degree in the specialty occupation;
- Hold an unrestricted U.S. state license, registration, or certification which authorizes full practice of the specialty occupation; OR
- Possess education and/or progressively responsible experience in the specialty occupation that is equivalent to the completion of a U.S. Bachelor’s degree, and recognition as an expert by authorities in the same specialty occupation.
H-1B Employer Requirements
Employers of H-1B workers must be willing to submit a labor condition application to the Department of Labor (DOL) confirming that there is no strike, lockout, or work stoppage in the specialty occupation at the place of employment. On the labor condition application, the employer must also promise to:
- Pay H-1B workers at least the local prevailing wage or the wage paid to similarly qualified and employed workers, whichever is higher.
- Pay for nonproductive time unless the time off was requested by the H-1B worker for personal reasons, and is in addition to the normal vacation, personal and sick time allotted by the employer.
- Offer H-1B workers benefits on the same basis as those offered to U.S. workers.
- Provide working conditions for H-1B workers which will not adversely affect the conditions of other workers.
- Provide notice to the union, or directly to its workers, of the H-1B employment (including the offered salary).
- Provide the H-1B worker with a copy of the labor condition application.
Terms and Conditions of H-1B Status
An H-1B worker may only work for the employer, and in the position, for which he or she was approved at the time the classification was granted. H-1B status in the U.S. may be granted for up to three years at a time. After six years in H-1B status in the U.S., the H-1B worker will reach the “six-year H-1B cap” and will no longer be granted additional time in H-1B status, unless an employer has reached a certain point in the Adjustment of Status or “green card” process for the worker.
The H-1B employer will be liable for the reasonable costs of the H-1B worker’s return transportation to his or her home country or last country of residence, if the employer terminates the H-1B worker’s employment before the end of the authorized period of H-1B status. The employer is not responsible for the costs of the return transportation if the H-1B worker voluntarily resigns, or if the H-1B worker chooses to remain in the U.S., rather than return home.
The H-1B visa has an annual numerical limit or “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. Master’s degree or higher are exempt from the cap. Additionally, H-1B workers who will be employed at one of the following organizations may not be subject to the numerical cap: 1. an institution of higher education, 2. a nonprofit related to or affiliated with an institution of higher education, 3. a nonprofit research organization, or 4. a government research organization. Additionally, if an H-1B worker will perform work related to higher education or nonprofit or government research at one of the organizations listed above, the employment may not be subject to the numerical cap.
Once an individual has been counted against the H-1B cap, he or she would not be subject to it again if applying for the remaining portion of the allotted six years.
Family of H-1B Specialty Occupation Workers
Spouses and unmarried children under 21 years of age may seek admission in the derivative H-4 nonimmigrant category. This category does not provide work authorization, except for certain H-4 spouses of H-1B workers who have reached a certain point in the Adjustment of Status or “green card” process. H-4 derivatives may attend school in the U.S.