H-1B Professionals With Specialized Knowledge in a Specialty Occupation

The H-1B nonimmigrant visa is for foreign workers in “specialty occupations” and fashion models of “distinguished merit and ability.” A “specialty occupation” is occupation that requires BOTH:

1. Theoretical and practical application of a body of highly specialized knowledge; and
2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B classification is available, for a period not to exceed a total of six years, to a foreign worker:

• Who will be in a temporary position.
• Who will perform services in a specialty occupation. (Most professional jobs are classified as “specialty occupations”); and,
• On whose behalf the employer obtained an approved Labor Condition Application (LCA). (A Labor Condition Application serves, amongst other things, to ensure that the employer is not paying less than prevailing wages).

Workers in this category may apply for permanent residency and do not need to maintain a foreign residence during their period of stay in the United States.

Availability of H-1B Numbers

The annual H-1B cap is set at 65,000. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000.

Dismissal Requirements

If an employer were to dismiss the foreign worker during H-1B classification status, the employer could be liable to pay the return fare to the foreign worker’s last place of foreign residence. This liability continues only during the H-1B status. Change of status to permanent residence or any other status, absolves the employer of this liability.

H-4 Visa Classification

Family members of the H-1B foreign worker are admitted to the United States in the H-4 category. Qualifying family members include only the spouse and unmarried children under 21 years old. H-4 dependents are admitted for the same period of time for which the H-1B foreign worker is admitted. H-4 dependents may alternatively be admitted in other nonimmigrant categories for which they qualify. H-4 dependents may undertake studies while remaining in the H-4 category, however, they may not engage in any form of employment.

H-1B Visa Extensions

The maximum period of validity of the initial H-1B petition is three years. Extensions of stay for up to three additional years can be obtained. Supporting documentation must be resubmitted because USCIS will not go back and retrieve information/documentation from the initial H-1B petition.

H-1B Visa Transfers

When an H-1B foreign worker would like to change employers and continue to maintain his or her current H-1B status, an I-129 petition must be submitted to USCIS by the new employer or its representative. The forms in this case will be treated as a new petition, and will require the appropriate filing fees. When the H-1B foreign worker changes H-1B employers, no action is required on behalf of H-4 family members. Because the H-4 nonimmigrant classification is not employer-specific, family members remain in valid status even if the H-1B foreign worker changes employer.

If you believe you may qualify for an H-1B Visa please call (646) 768-4190 or email us at betty@bettyhuanglaw.com to schedule a consultation.