H1B Specialty Occupation

The H1B visa is a non-immigrant visa. It is designed to allow U.S. employers to recruit and employ foreign professionals in specialty occupations within the USA for a specified period of time. The H-1B program provides the opportunity for foreign workers in specialty occupations to legally live and work in the US for a total of 6 consecutive years, and entitles their spouse and children (under the age of 21) to accompany them and legally live in the USA on an H-4 visa. However, the spouse and children have to obtain their own work visa for working.

Under H-1B visa requirements, the company, organization or the employer is the petitioner, it has to file H-1b petition for hiring the employee, while the foreign worker is the beneficiary. Foreign individuals themselves cannot apply for an H-1B visa to allow themselves to work in the US. The number of H-1B visas issued each year is subject to an annual cap (known as H1B cap) of 65,000 per fiscal year less free trade visas for Chile and Singapore resulting in 58,200 H-1Bs. There are also cap-exempt categories.

Foreign workers must possess at least a bachelor’s degree. Occupations that qualify for H-1B visas typically require highly specialized knowledge in a field of human endeavor including, but not limited to: IT, Architecture, Engineering, Mathematics, Physical Scientific Research, Social Science, Biotechnology, HealthCare/Medicine, Education, Law, Accounting, Business, Theology, Arts, Computing, Finance, Accounting, Banking, Marketing, Sales, Recruiting, and Telecommunication.

Aside from the requirement that the position be a specialty occupation, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL). An employer filed LCA attests that the H1B visa worker is being paid the prevailing wage for the work being performed, and that employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.