H-1B Visa -Specialty Occupations

This visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.

Eligibility Criteria

Visa Category	General Requirements	Labor Condition Application Required?
H-1B Specialty Occupations	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 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.**	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. See the links to the Department of Labor’s (DOL) Office of Foreign Labor Certification and USCIS forms to the right. For more information see the “Information for Employers & Employees” link to the left.
H-1B2 DOD Researcher and Development Project Worker	The job must meet both of the following criteria to qualify as a DOD cooperative research and development project: The cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. Department of Defense A bachelor’s or higher degree, or its equivalent is required to perform duties. To be eligible for this visa category you must 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.**	No.
H-1B3 Fashion Model	The position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability.	Yes. The prospective employer must file an approved LCA with the Form I-129. See the links to the Department of Labor’s Office of Foreign Labor Certification and USCIS forms to the right.

*For more information, see 8 CFR §214.2(h)(4)(iii)(A).
**For more information see 8 CFR §214.2(h)(4)(iii)(C).

Application Process

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. For further information regarding LCA requirements and Doll’s inert process, see the “Foreign Labor Certification, Department of Labor” link to the right.
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. Please see the “I-129 Direct Filing Chart” link on the right side of the page. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 for additional filing requirements.
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.

Labor Condition Application (LCA)
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.

Period of Stay
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.

H-1B Cap
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.

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.

Last updated: 03/24/2011