How Does a Job and Applicant Meet the Requirements of the H-1B Specialty Occupations Criteria?

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The job must meet one of the following criteria to qualify as a specialty occupation:

Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position

The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree

The employer normally requires a degree or its equivalent for the position. Our office can assist you with evaluation of credentials if you have a foreign degree or if you are seeking to use progressive work-experience instead of a degree to qualify for the H1B visa.

The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.*

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university

Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation

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

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.**

Our law office has 25 years of experience and focuses carefully on matching education, prior job experience and job offers. In many cases, skillful description of prior work experience will mean the difference in preventing time-consuming responses to RFE from USCIS and even in the granting of the H1-b Visa.

Is A Labor Condition Application Required?

Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.

What is the Application Process for a Specialty Worker?

Step 1: (only required for specialty occupation and fashion model petitions):  Employer Submits LCA to DOL for certification.

The employer must apply for and receive DOL certification of an LCA.

Step 2:  Employer Submits Completed Form I-129 to USCIS.

The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center.

Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.

Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required).   Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

What is the Labor Condition Application (LCA) Process for an H1-b Visa?

 Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.

The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

What is the Period of Stay for an H1-b Visa?

As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

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 approved your petition in writing if you believe that your employer has not complied with this requirement.

What is the H-1B Cap for H1-b Visas?

The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 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.

What About 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. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.

The Law Offices of Rose H. Robbins represents clients all over the United States and all over the world.  Please call us at: (954) 946-8130 to schedule your free telephone consultation.  This is a FREE consultation and you will not be charged for this call.

* Major Florida Cities We Serve

Boca Raton Cape Coral Clearwater Deerfield Beach Ft. Lauderdale  Gainesville Hialeah Hollywood Jacksonville Lighthouse Point Miami  Miami Beach Orlando Pompano Beach Port St. Lucie St. Petersburg Tallahassee Tampa West Palm Beach

* Major Florida Counties We Serve

Broward County Duval County Hillsborough County Miami-Dade County Orange County Palm Beach County Pinellas County

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Disclaimer : The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Offices of  Rose H. Robbins or establish an attorney-client relationship.