The H-1B Visa and the Specialty Occupation Requirement
H-1B visas are typically utilized by U.S. employers seeking to employ a foreign national in a specialty occupation. See www.uscis.gov. Prior to filing the I-129 petition for an H-1B visa, a Labor Condition Application must be applied for with the Department of Labor. The Labor Condition Application requires the U.S. employer to make four essential attestations in order to protect the U.S. labor market. See Martin J. Lawler and Margaret D. Stock, Professionals: A Matter of Degree, 5th ed., at 271 (2009 AILA Publications). Upon approval of the Labor Condition Application, the I-129 non-immigrant visa petition may be filed.
An H-1B visa is an attractive visa option for professionals seeking to work and immigrate to the U.S., since the prospective applicant is permitted to harbor immigrant intent. However, a major obstacle in applying for an H-1B visa, is demonstrating that the occupation which the foreign national is being employed in is a “specialty occupation.”
For H-1B purposes, a specialty occupation is referred to as an “occupation which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” See INA 214(i)(1). This definition is extremely cumbersome. There is no list of approved specialty occupations. Moreover, proving that the particular “specialty occupation” requires the attainment of a bachelor’s degree is also another hurdle that must be overcome.
If one is indeed successful in attaining approval of their H-1B visa petition, the H-1B visa is initially valid for a three year period, and an individual in H-1B status in the U.S., is eligible to renew their visa for an additional three years. See www.uscis.gov. The total period of time that an individual may remain in valid H-1B status in the U.S. is six years. See Martin J. Lawler and Margaret D. Stock, Professionals: A Matter of Degree, 5th ed., at 207 (2009 AILA Publications).
Mechanisms exist that allow individuals in H-1B status to extend their stay in the U.S., such as re-capturing time spent abroad while in H-1B status. Id. at 223. Further, because an H-1B visa allows for dual intent, immigrant and non-immigrant intent, individuals who have applied for permanent residence while in H-1B status, and whose period in H-1B status has expired while they are awaiting approval of their permanent residence applications, are eligible to apply for unlimited one-year extensions of H-1B status until their application for permanent residence is approved.
With the proper assistance of counsel, an H-1B visa is attainable, and a feasible option for employers seeking to hire a foreign national to work in what is referred to as a “specialty occupation.” For further information or inquiries on the H-1B visa process, feel free to contact our office.
