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H-1B specialty occupation worker visas are the most commonly used temporary work visas available to foreign professionals in the U.S. A U.S. employer can file an H-1B petition with USCIS on behalf of a foreign national provided that the job requires at least a bachelor’s degree in a particular field of study related to the occupation. Eligible fields of endeavor include, but are not limited to:
The H-1B1 and E-3 categories are similar but specifically limited to nationals of Chile or Singapore and Australia, respectively.
The foreign national worker must either have an accredited U.S. bachelor’s degree, foreign equivalent degree, or a combination of education and experience equivalent to a degree, in a field related to the offered job. Three years of progressive experience in the specialty occupation is typically deemed equivalent to one year of university studies, in this context.
How we help: Our immigration attorneys have extensive experience in working with credentials evaluators and experts to document degree qualifications, particularly for individuals who do not have a degree but can reach equivalency to a degree through a combination of education and experience, or through experience alone.
H-1B status may be granted for an initial period of up to three years; however, extensions can be obtained for up to a total of six years and sometimes more. H-1B1 status is valid for one year with indefinite renewals. E-3 status may be granted for an initial period of up to two years and may be extended indefinitely in two year increments.
In these categories, employers must offer the foreign national worker the same salary and benefits packages normally offered to U.S. workers in similar positions. Employers are obligated to pay at least the prevailing rate of pay for the offered position in the geographic area of employment and must keep records to establish they are paying the required wage and are otherwise complying with the terms and conditions of the visa program. These wage and working condition requirements are regulated by the U.S. Department of Labor (DOL) though the Labor Certification Application (LCA) process.
How we help: Our firm is skilled at navigating this complex process, ensuring that all H-1B/H-1B1/E-3 clients are compliant not only with USCIS regulations but also with DOL regulations; we also provide LCA and Public Access File auditing and compliance services to our corporate clients.
Important Fact: The quota limit for regular H-1B visas is 65,000 per fiscal year, beginning in October — this is known as the H-1B Cap. However, 20,000 additional visas are reserved for foreign workers with a U.S. master’s degree or higher, known as the H-1B Master’s Cap. In recent years, visa petitions filed by employers have significantly exceeded the quota and are entered into a “lottery” system whereby the petition may or may not be selected for review by USCIS. As such, advance planning is required for employers wishing to seek H-1B status on behalf of a foreign worker. The earliest filing date is April 1 for an October 1 employment start date.
Our firm generally commences preparing H-1B “cap” filings in December of each year, for start dates in the following fiscal year (on or after October 1).
H-1B1 and E-3 visas have separate annual quotas which are not typically reached. In addition, certain employers, such as higher education institutions and related or affiliated organizations, as well as nonprofit and governmental research organizations are exempt from the H-1B cap.
To speak with an immigration attorney about H-1B, H-1B1 & E-3 visas for “specialty occupation workers” contact Grossman Young & Hammond.
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