H-1B Visas

Your employer or agent may file a petition to classify you as an H-1B temporary worker if you work in a specialty occupation, engage in cooperative research and development projects administered by the U.S. Department of Defense, or are a fashion model of distinguished merit and ability.

H-1B Specialty Occupations Requirement

The H-1B program requires a petitioner to demonstrate that the position for which the individual’s services are sought is a “specialty occupation,” which essentially means an occupation that requires highly specialized knowledge in the field of human endeavor including but not limited to architecture, engineering, mathematics, physical or social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, which require a bachelor’s degree or higher as a minimum.

There are four ways to demonstrate that the position being offered to the individual meets the requirements for a specialty occupation:

1. A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations, or in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Additionally, for the individual to qualify to accept the job offer in the specialty occupation, they must meet one of the following criteria:

1. Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
2. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation (this will need to be certified equivalency)
3. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
4. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

For applications under H-1B specialty occupation, the prospective employer must file an approved Form ETA-9035, Labor Condition Application, with the Form I-129 Petition for a Nonimmigrant Worker.

H-1B2 DOD Researcher and Development Project Worker Requirements 

The job must meet both of the following criteria to qualify as a DOD cooperative research and development project:

• The cooperative research and development project or a co-production project is provided for under a government to government agreement administered by the U.S. Department of Defense
• A bachelor’s or higher degree or its equivalent is required to perform duties.

Additionally, to be eligible for this visa category you must meet one of the following criteria:

1. Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
2. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation (this will need to be certified equivalency)
3. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
4. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

For applications based on the H-1B2 sub category of the H-1B program, a Labor Condition Application, is not required

H-1B3 Fashion Model Requirements

The position/services must require a fashion model of prominence. The company hiring must prove that it performs services for events with a distinguished reputation or for organizations with a record of employing prominent people.  The potential model must show that he or she is a fashion model of distinguished merit and ability by proving that they meet any two of the following  qualifications:

1. National or international recognition evidenced by critical reviews, articles, or news stories
2. Performance for employers that have distinguished reputations
3. Recognition by experts or critics
4. Commanding a high salary relative to other models.

**Note: The usual bachelor’s or higher degree requirement is NOT required for H-1B3 models. However an approved Labor Condition Application is required.

Application Process 

Step 1: (Only required for specialty occupation and fashion model petitions): Employer submits the Labor Condition Application (LCA) to the Department of labor (DOL) for certification.

Step 2: Employer submits completed Form I-129 to USCIS with the attached DOL certified LCA.

Step 3: Prospective Workers Outside the US Apply for Visa and/or Admission once the I-129 petition has been approved.

Period of Stay

As an H-1B nonimmigrant, you may be admitted for a period of up to 3 years. Your time period may be extended, but generally cannot go beyond a total of 6 years, with a few exceptions. Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that you approved your petition in writing if you believe that your employer has not complied with this requirement.

H-1B Cap 

The H-1B visa an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,0000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Family of H-1B Visa Holders 

Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment based lawful permanent resident status.