H-1B Specialty Occupation
- Specialty Occupation. H-1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. A specialty occupation is: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation." To qualify as a "specialty occupation" the position must meet the following requirements. All five criteria must be met:
- A baccalaureate or higher degree (or its equivalent) is normally the minimum requirement for entry into the particular profession.
- The degree requirement is common to the industry.
- The employer must normally require a degree or its equivalent for the position.
- The job duties must be "so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree."
- The position's level of responsibility and authority must be "commensurate with professional standing." The H1B status can be used to bring temporary faculty members, researchers, consultants, administrators, or individuals engaged in a variety of professional-level activities to the United States.
- Foreign Labor certification Pre-requisite. The H-1B employer-petitioner must receive the Department of Labor Foreign national Labor Certification to establish it is paying the greater of the prevailing wage for a similar occupation position in the geographic area or the actual wage it pays similar employees. The labor certification is a pre-requisite to the employer-petitioner submitting the visa petition.
- H-1B Cap. There is a limited number of H-1B visas granted in the Government fiscal year, (October 1 through September 30). The cap is 65,000, but there is available in addition 20,000 H-1B visas, only for foreign workers with a minimum master's level degree from a U.S. academic institution. Employee-beneficiaries of approved H-1B visas may not begin employment until October 1, which creates critical issues in "bridging status." until the start date.
- H-1B Cap Exempt Employers. Many nonprofit primary and secondary schools that are affiliated with institutions of higher education, and therefore, employees of those schools are exempt from the H-1B cap. Everyone applying for the status. for the first time will be subject to the cap, unless they seek status. to do cap-exempt work. The following types of work are cap exempt:
- Work for an institution of higher education or a related or affiliated nonprofit entity;
- Work for a government research organization or a nonprofit research organization; and
- Work as a physician relevant to a J waiver on the basis of agreeing to serve as a primary care physician in a Health Professional Shortage Area (Conrad State 30 Program).
- H-1B Job Portability. Generally the H-1B period of authorized stay is linked to working for the petitioning employer and the underlying foreign labor certification. However, persons in H-1B status. may change employment ("port") to a new employer and begin working as soon as the new employer submits its petition for a new H-1B visa for the employee-beneficiary. The two requirements for porting are: (1) The job must be in the same or similar occupational classification; (2) The employee cannot port from a cap-subject to a cap-exempt employer, or vice versa, without beginning a completely new H-1B visa process.