It’s time to get started on H-1B visa applications

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On Behalf of | Dec 28, 2021 | H-1B Visas

People in certain specialty occupations, fashion models and people working on cooperative research and development projects with the U.S. Department of Defense may be eligible to come to the U.S. on H-1B visas. These are nonimmigrant visas that last for three years and can be renewed for an additional three years.

What is a specialty occupation?

Most people seeking an H-1B visa will be working in a specialty occupation. This is an occupation that:

  • Requires theoretical and practical application of a body of highly specialized knowledge
  • Requires a bachelor’s degree or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.

The specific position you will be working in must also meet one of the following criteria:

  • A bachelor’s degree or higher is normally the minimum entry requirement for the position
  • The degree requirement is common in parallel positions among similar organizations OR the job is so complex or unique that it can only be performed by someone with a bachelor’s degree or higher
  • The employer normally requires a bachelor’s degree or equivalent for this position
  • The nature of the duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s degree or higher

In addition, you must meet one of the following four criteria:

  • You hold a bachelor’s degree or higher required by the specialty occupation from an accredited college or university
  • You hold a foreign degree from an accredited college or university that is equivalent to a U.S. bachelor’s degree
  • You hold an unrestricted state license, registration or certification that authorizes you to fully practice the specialty occupation immediately in the state where you will be employed
  • You have education, specialized training or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s degree or higher, along with recognition of your expertise as shown by progressively responsible positions

Because jobs in specialty occupations require substantial education, experience or training, it is common for them to be in the high tech field.

The H-1B visa cap

It is important to understand that there is an annual cap of 85,000 new H-1B visas each year, 20,000 of which go to people with advanced degrees. Many more people apply than are given visas. Therefore, it is important to get started on the process as early as possible.

Some H-1B visas are not subject to the cap. If you have a job offer from:

  • An institute of higher education
  • A nonprofit affiliated with an institute of higher education
  • A nonprofit research organization
  • A government research organization

You would not be subject to the H-1B visa cap.

H-1B visas require a job offer and an employer to petition on your behalf

Consider getting an H-1B visa a collaborative process between you and an employer who is willing to sponsor you.

For specialty occupation workers and fashion models, the employer will have to submit a Labor Condition Application (LCA) to the government. This is a promise that you will receive fair wages and working conditions. Once the LCA is approved (or if your employer is the Department of Defense), your employer will submit Form I-129, Petition for a Nonimmigrant Worker.

Once Form I-129 has been approved, you can apply at your nearest U.S. embassy or consulate for an H-1B visa. Be aware that an electronic filing is required. If you receive an H-1B visa, you move on to the next step, which is applying to U.S. Customs and Border Protection for admission to the U.S. based on that visa.

Employers or employees interested in H-1B visas should contact Yew Immigration Law Group. Attorney Alison Yew is a State Bar of California-certified immigration law specialist.