H-1B - Specialty Occupation Workers

The H-1B nonimmigrant classification is a vehicle through which qualified aliens may seek admission to the United States on a temporary basis to work in their fields of expertise. Prior to employing an H-1B temporary worker, a U.S. employer must first file an H-1B petition with USCIS. However, while USCIS is responsible for evaluating an alien’s qualifications for the H-1B classification, approval of an H-1B petition does not equate to admission of the alien to the U.S. in H-1B status. The Department of State (DOS) plays a vital role in the H-1B admission process.

Prior to filing the H-1B petition with USCIS, the U.S. employer must first file a Labor Condition Application (LCA) with the Department of Labor (DOL) specifying the job, salary, length and geographic location of employment. In addition, the employer must agree to pay the alien the greater of the actual or prevailing wage for the position. Once DOL approves the LCA, the U.S. employer may file the H-1B petition with USCIS.

To qualify as a specialty occupation, the position must meet one of the following requirements:

(1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;

(2) the degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

(3) the employer normally requires a degree or its equivalent for the position; or

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

In order to perform services in a specialty occupation, an alien must meet one of the following criteria:

(1) hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;

(2) possess a foreign degree determined to be equivalent to a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;

(3) have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or

(4) have, as determined by USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. Specialty occupations may include, but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants.

An alien may be admitted to the United States in H-1B status for a maximum period of six years; however, the H-1B petition may only be approved for a maximum period of three years. Thus, the H-1B petition may be used to sponsor an alien for an initial period of H-1B employment or to extend or change the authorized stay of an alien previously admitted to the United States in H-1B status or another nonimmigrant status. Additionally, an employer may file the petition to sponsor an alien who currently has status as an H-1B nonimmigrant working for another employer or to seek an amendment of a previously approved petition.

In the case of a petition to amend a previously approved petition, no corresponding request need be made to extend the authorized stay of the beneficiary.

Section 214(i)(1) of the Immigration and Nationality Act defines a specialty occupation as “an occupation that requires:

(A) the 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 in the United States.”

For example, an employer may file an amended petition notifying USCIS of a different location where the beneficiary will be employed or a material change in the beneficiary’s job duties. Therefore, the total number of approved petitions exceeds the actual number of aliens who are provided nonimmigrant status as H-1B. At the end of the six-year period, the alien must either change to a different status (if eligible) or depart the United States.3 USCIS regulations provide that an alien who has been outside the United States for at least one year may be eligible for a new six-year period of admission in H-1B status.

• Certain aliens are exempt from the six-year maximum period of admission under the provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).

• When the H-1B category was enacted in 1990, Congress established that a maximum of 65,000 H-1B visas may be issued to aliens during each fiscal year. This limitation, commonly referred to as the “H-1B cap,” does not apply to H-1B petitions filed on behalf of aliens who have been counted against the cap in the previous six years and who have not been outside of the United States for one year or longer. Thus, generally, petitions to extend an H-1B nonimmigrant’s period of stay, change the conditions of the H-1B nonimmigrant’s current employment, or request new H-1B employment filed on behalf of H-1B workers already in the United States will not count against the H-1B fiscal year cap.

• The INA, as amended by the Immigration Act of 1990 and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act (AC21), made significant changes to policy and procedure governing the H-1B category, including providing temporary increases in the fiscal year limitations on available H-1B visas and providing for certain exemptions to these limitations. Under ACWIA, the annual ceiling of H-1B petitions valid for new employment was increased from 65,000 to 115,000 in fiscal years 1999 and 2000 and to 107,500 in 2001. AC21 raised the limit on petitions in fiscal year 2001 from 107,500 to 195,000 and in fiscal year 2002 from 65,000 to 195,000. The limit in fiscal year 2003 was 195,000. Starting in fiscal year 2004, the H-1B cap reverted back to 65,000 per fiscal year and presently remains at that level. These statutory provisions also provided for certain exemptions from the fiscal year H-1B cap and petitions for new H-1B employment are exempt if the aliens will be employed at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. In addition, the H-1B Visa Reform Act of 2004 mandates that the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees will be exempt from any fiscal year cap on available H-1B visas.

• The terms “initial employment” and “continuing employment” are used throughout this report to identify two types of petitions. Petitions for initial employment are filed for first-time H-1B employment with employers, only some of which are applied to the annual cap. Continuing employment petitions refer to extensions, sequential employment, and concurrent employment, which are filed for aliens already in the United States. Extensions are filed for H-1B workers intending to work beyond the initial 3-year period up to 6 years, the maximum period permissible under law during fiscal year 2004. Sequential employment refers to petitions for workers transferring between H-1B employers within the 6-year period. Finally, petitions for concurrent employment are filed for H-1B workers intending to work simultaneously for a second or subsequent H-1B employer.

• Neither AC21 nor prior legislation established a cap on H-1B petitions for continuing employment.

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