The H-1B Visa for Professionals in Specialty Occupations

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Introduction
The H-1B visa category is one that allows certain foreign professionals to work temporarily for a US company in the United States. It allows legal employment initially for up to 3 years with the possibility of renewal for 3 more years. Generally, an individual is only allowed a maximum period of admission of six (6) years. However, if an alien applies for permanent residence where 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended beyond the sixth year in one-year increments.

A foreign worker may qualify for the H-1B visa if:

1. The job is a “specialty occupation.” A specialty occupation is one requiring:
   
   
   • A theoretical and practical application of a body of highly specialized knowledge; AND
   • Attainment of a bachelor’s or higher degree (OR ITS EQUIVALENT) as a minimum for entry into the occupation in the U.S.
2. The worker is a “professional worker.”
3. The employer pays either the “prevailing wage”-- the amount determined by either federal or state agencies or an independent authoritative source should be paid to all employees in the same occupation in the same geographic location--OR the “actual wage” the employer pays to other employees similarly employed with similar experience and qualifications.

Elements of H-1B Category
The most important factors reviewed by INS, in order of importance regarding whether or not a particular job qualifies as a specialty occupation, are:

1. A bachelor's or higher degree in a specific field is the entry-level requirement.
2. The degree requirement is accepted throughout the industry in parallel positions among similar companies.
3. Absent such acceptance, the employer can show that the particular position is so complex or unique that a degree is required.
4. The employer’s normal requirement for the position is a degree (that other persons filing parallel positions hold degrees or the prior occupants of the position held degrees).
5. The complexity of the specific job duties is usually associated with attainment of the degree
6. The level of responsibility and authority involved in the position is usually associated with professional
   standing (i.e.) attainment of a bachelor’s degree.

Applications of the New H-1B Extension Regulation
A traditional Labor Certification (LC) application filed more than a year ago and is still pending: EXTENSION OF THE H-1B BEYOND THE 6^TH YEAR IS PERMISSABLE.

Strategic H-1B Concepts
Strategic H-1B concepts are key ideas that can govern an employer or foreign national’s use of the H-1B nonimmigrant professional visa category. These ideas are also important considerations that may guide how long an H-1B visa might be utilized and whether an employer and/or prospective foreign employee might consider Permanent Residence or perhaps another nonimmigrant visa category.

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