H-1B Work Visa: Specialty Occupation

H-1B is a nonimmigrant visa classification for individuals who wish to perform services in a
specialty occupation in the U.S. A specialty occupation is defined by the regulations as a
position that requires the theoretical and practical application of a body of highly specialized
knowledge; and the attainment of a bachelor’s degree or higher in a specific field of study.

H-1B visa requirements

For an individual to qualify for an H-1B visa, they must have at least a bachelor’s degree in the
discipline required by the specialty occupation position. When an employer selects a foreign
national candidate for their specialty occupation position, they are responsible for H-1B
sponsorship. The H-1B visa is for temporary employment and it is employer and position
specific, meaning that the individual holding the H-1B visa can only work for the employer and in
the position listed on the H-1B petition.

The H-1B visa process

Prior to starting the H-1B visa process, the company must register the candidate for the H-1B
lottery (unless the petitioner is cap-exempt). Due to the H-1B cap, there are a limited number of
H-1B visas granted each fiscal year. USCIS uses a lottery process to determine which
individuals will be eligible to move forward in the H-1B visa application process. For more
information on the H-1B lottery, please visit our H-1B lottery page.

Once an individual is selected in the H-1B lottery, the employer can begin the process to petition
on behalf of the individual for the H-1B visa. First, the employer is required to file a Labor
Condition Application (LCA) with the Department of Labor. In this step, the employer attests they
are unable to find a qualified American employee for the position, and that they will pay the
foreign national the prevailing wage for the position.

Next, once the LCA is certified, the employer will file the Form I-129, Petition for Nonimmigrant
Visa Worker with USCIS. Employers are required to include information about the company,
position, and the foreign national they would like to hire as supporting documentation. USCIS
processing times for H-1B petitions vary depending on the type of petition. USCIS’ premium
processing service is available for the H-1B classification and guarantees a response within
fifteen (15) business days.

Period of stay

H-1B status is granted for an initial period of three (3) years with the ability to extend for an
additional three (3) years, allowing a foreign national a total of six (6) years of employment
authorization in H-1B status. H-1B status has dual intent, meaning that the individual can have
the intention of applying for lawful permanent residence while in H-1B status. Under certain
circumstances, H-1B status can be extended beyond the normal six-year limit.

Ellen Freeman is an immigration attorney with a wealth of experience in employment-based
immigration. She specializes in several different employment-based categories, including as a
lawyer for H-1B visas. Please contact our office for more information about what visa petition
may be best for you. We look forward to working with you.