The H-1B Visa for Professionals

Introduction

The H-1B is a nonimmigrant visa for certain professional workers, permitting full-time or part-time employment in the U.S. It is normally issued for three years, with a possibility of a three-year extension. However, if an H-1B holder is in the process of obtaining an employment-based green card, extensions beyond 6 years may be possible.

A foreign national who is in the U.S. on an H-1B may change jobs if a new employer applies for an H-1B transfer on his behalf. However, the six-year limit for H-1B status still applies. An H-1B employee can also work for multiple employers as long as each files a petition with USCIS on his or her behalf. There is no specific number of hours that the employee is required to work for each employer.

Spouses and minor children (under 21) of persons granted H-1B status are generally admitted in H-4 status.

Eligibility Criteria

There are very specific eligibility criteria for an H-1B, and in recent years, USCIS has been interpreting these more narrowly. An approvable case has the following elements:

1. The prospective employee's position must be in a specialty occupation, meaning that the position must require a bachelor's degree, or higher, in a specific field.
2. The position must be temporary with a specified end date. H-1Bs can be initially granted for up to 3 years.
3. The applicant must have appropriate qualifications for the occupation and for the employer's position.
4. The petitioning employer must operate in the U.S. and have a U.S. Tax ID number.
5. There must be a clear employer/employee relationship.
6. The employer must obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL) for the position offered.
7. There must be an H-1B visa available at the time the employer's petition is received by USCIS. This rule does not apply to cap exempt employers or certain cap-exempt beneficiaries.

What is a "specialty occupation?"

Immigration law defines a specialty occupation as one that requires the attainment of a bachelor's or higher degree – or its equivalent – in a specialized field. Unfortunately, over the last several years, the USCIS has been interpreting specialty occupation more and more narrowly. Consequently, H-1B petitions are taking longer to process, and more are being denied.

One way to convince USCIS that a job is in a specialty occupation is to prove that a bachelor's or higher degree in a closely related field is normally the minimum requirement for entry into the field. This conclusion largely depends on the qualifications detailed in the Department of Labor's Occupational Outlook Handbook (OOH) for an occupation with the specified job duties. Often, and especially in emerging fields, there is no information in the OOH on the occupation outlined in the employer's job description. Moreover, there are only a few occupations where the OOH states unequivocally that a bachelor's degree in a specific field is absolutely required. When the OOH is less than absolute, USCIS is likely to focus on the possibility that a specific degree is not required in all cases.

The employer can also show that the duties of the position are so complex or unique that a degree in a relevant field is required. This method requires a highly detailed job description and in-depth information about the employer. Although the legal standard is "a preponderance of the evidence" (also known as "more likely than not"), it is not uncommon for the USCIS to issue an RFE effectively asking an employer to present an airtight case.

Another way to prove that a position is in a specialty occupation is to show that a degree requirement in a relevant field is common in the industry in parallel positions among similar organizations. Over the past several years, USCIS has been interpreting this wording more and more strictly. The word "requirement" is typically construed as an absolute requirement. However, job listings frequently use words that are less than absolute. For instance, "Bachelor's degree in computer science strongly preferred" is generally not convincing enough for USCIS. The words "industry" "parallel" and "similar" are also being applied very narrowly. An RFE will often state that information on parallel positions must come from employers of the same size in the same narrow business domain.

The last way to prove that a position is in a specialty occupation is for the petitioning employer to show that his or her firm normally requires a bachelor's degree for that kind of position. Meeting this standard is far easier for a larger employer than for a small one. Even then, an employer may not have anyone else in the organization with exactly the same job duties or may have a mix of workers with and without related bachelor's degrees.

There are still some lines of work that are generally viewed as specialty occupations requiring at least a bachelor's degree for entry. Most accounting, engineering, IT, graphic design, teaching and pharmacist positions fall in this category. RFEs are less common for these kinds of positions, but not entirely unknown.

You have questions. We have answers.

Immigration Law Associates, PC has prepared many E-1 and E-2 visa applications on behalf of new and established organizations wishing to do business in the U.S. If you would like to discuss your plans for starting a business in the United States (or renewing your current E-1 or E-2 status), please call our office at (847) 763-8500 or Contact Us.