H-1B WORKERS IN SPECIALTY OCCUPATIONS
As consideration for issuance of an H-1B visa, USCIS considers whether the position is a specialty occupation and the beneficiary meets its requirements. There are annual limits on how many H-1B petitions may be granted. These limitations change often however.
Specialty Occupations INA 214(i)(1) defines a specialty occupation as one requiring (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. To establish that a job qualifies as a specialty occupation, in accordance with 8 CFR § 214.2(h) (4) (iii) (A), one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent is the minimum entry requirement for the position;
- The degree requirement is common to the industry, or the position is so complex or unique that it can be performed by an individual with a degree; and
- The employer normally requires a degree or its equivalent for the position.
The alien must also have a degree in a specialty field related to the position. The degree must have provided the knowledge and skills necessary to perform a specific job. Based on this, USCIS will deny an H-1B petition citing a degree in liberal arts. USCIS considers degrees in computer science, biology, math, accounting and software engineering to be suitable for specialty occupations. Pursuant to INA § 214(i) (2) and 8 CFR § 214.2(h) (4) (iii) (C), to qualify for the specialty occupation, the alien must have:
- Full licensure if required in the state;
- Completion of an American bachelor’s or higher degree (or its foreign equivalent) in the specific specialty or related field; or
- Education, training or experience in the specialty equivalent to the completion of such degree.
License Requirement. A specialty worker must have a license or a temporary permit if it is required for the practice of a particular specialty occupation. In some cases, there might be an issue whether the specific duties described in an H-1B petition require licensure. For example, an attorney practicing litigation law is required to obtain a state license, whereas one conducting research for a dissertation may not. Therefore, the license requirement is not determinative of whether the position is a specialty occupation. An unlicensed accountant who works under the supervision of a licensed accountant is eligible to receive H-1B status. The applicant’s degree, not the license, is determinative of the specialty occupation.
Degree Requirement. While most H-1B applicants must have bachelor’s or higher degrees, a research geneticist position, for example, may require an advanced degree as a minimum requirement. Further, the major or concentration of the bachelor’s degree program usually identifies the specialty. Sometimes, a specialty occupation may combine several disciplines. For example, a software engineer specialty may combine degrees in computer science and math.
Foreign Degree. Pursuant to 8 CFR § 214.2(h) (iii) (C) (2), USCIS will accept a degree from a foreign university if it has been evaluated as equal to an American one. An independent evaluator may determine whether a foreign degree is equivalent to that earned at an American university or college.
Degree Equivalency. As stated in § 214(i)(2)(C)(ii), INA permits a beneficiary to qualify for a specialty occupation based on experience that is equivalent to a bachelor’s degree as long as he demonstrates that his expertise was gained through “progressively responsible positions relating to the specialty.” According to 8 CFR § 214.2(h) (4) (iii) (D), the petitioning employer may establish equivalency through:
- an evaluation by a college official authorized to grant credit for training or experience in the specialty;
- the results of college-level equivalency examinations or special credit programs; or
- certification or registration from nationally recognized professional associations for the specialty.
In addition, according to 8 CFR § 214.2(h)(4)(iii)(D), USCIS may determine equivalency through the application of the “three-for-one” rule, by which three years of specialized training or work experience may be substituted for each year of college-level education that the beneficiary lacks. On the other hand, the regulations state that demonstrating equivalence to an advanced or master’s degree requires the possession of a bachelor’s degree followed by at least five years of experience in the specialty. But, if the specialty requires a doctorate degree, the applicant must hold a doctorate or its foreign equivalent and three-for-one rule will not apply to the case.
Physicians. Foreign-trained physicians may now seek H-1B status and engage in patient care as long as they (a) pass the Federation Licensing Examination (FLEX), or its equivalent; and (b) establish competency in written and spoken English. In the alternative, the physician may be a graduate of an accredited medical school. The Department of Health and Human Services (HHS) announced that two examinations are considered equivalent to the FLEX: (1) Steps 1, 2 and 3 of the U.S. Medical Licensing Examination (USMLE); and (2) Parts I, II and III of the National Board of Medical Examiners (NBME) certifying examination. FLEX and NBME have been phased out, leaving the USMLE as the only examination currently designated by HHS. Note that the exam requirements do not apply to a physician of national or international renown.
Termination of H-1B Employment
The employer is liable for reasonable transportation costs if he dismisses an H-1B worker prior to the completion of his stay. However, he is not liable for the transportation costs if the H-1B worker voluntary leaves his employment.
H-1B Documentation To obtain an H-1B petition, the employer must file the following documents:
- Form I-129, Petition for Alien Worker;
- Form I-129, Supplement H;
- Form I-120, H-1B Data Collection Supplement;
- Form ETA-9035 or ETA-9035E, Certified LCA;
- Form I-539 (if dependents) and copies of dependents’ immigration documents;
- Petitioner’s letter describing the specialty occupation and how the beneficiary meets the requirements;
- Copies of the beneficiary’s educational credentials (degrees, transcripts, training certificates, and letters of experience if lacking a bachelor’s degree);
- Credential evaluation, if the degree is from a non-American university;
- Proof of beneficiary’s current immigration status if in the United States or copy of passport if outside the country;
- Documentation on the employer (annual report, proof of ability to pay the wage, business licenses, tax returns, etc.); and
- Employer fee (unless exempt), filing fee, fraud fee and premium processing fee, if any.
Dual Intent Dual intent relates to the desire to immigrate in addition to work in the United States. H1-B beneficiaries may intend to work temporarily as a nonimmigrant but also seek permanent-resident status. Therefore, USCIS may not deny an H-1B applicant a visa merely based on his intent to immigrate to the United States.
Portability H-1B petitioners may transfer or “port” to a new employment as soon as the new H-1B petition if filed. This requirement applies to any H-1B worker who (1) has been lawfully admitted the United States, (2), subsequent to such admission, has not worked without permission; and (3) has a non-frivolous petition filed by an employer for new employment prior to the expiration of his authorized stay.
Period of Admission An H-1B worker may stay in the United States for a total of six years, with extensions of up to three years. He is eligible for a new six-year period after having lived outside the country for at least one year. The beneficiary cannot count time in another status while living in the United States against this one-year period. If the H-1B worker spends some time outside the United States, he may recapture all this time so that it does not count towards the six-year period.
One-year Extensions for H-1B workers with Pending Labor Certifications. The 21st Century Department of Justice Appropriations Authorization Act allows USCIS to approve extensions of H-1B status in one-year increments for H-1B workers with pending labor certifications prior to the end of their fifth year which have been pending more than one year.