Florida Immigration Attorneys

H-1B The Specialty Occupation Visa

Each year there are a limited number of specialty occupation visas (H-1B) available for qualified employers and employees. In many fiscal years (FY) the CAP on the number of available H-1B visas is reached on the first day open for filing. In recent years the window for filing again has been steadily shrinking and appears to be heading toward an abbreviated filing.

Prepare Your H-1B Application Early

Every employer or employee that is considering the use of the H-1B visa should begin preparing as early as possible so that a fully prepared application may be filed with the US Citizenship and Immigration Services (CIS) on or about the first date of availability. The anticipated opening day for filing is typically in March/April and the first day that employment may commence is in October.

Who Is Eligible for the H-1B Visa?

The H-1B is available to persons that are in a specialty occupation or distinguished merit and ability fashion models or a person in development or coproduction project associated with the US Department of Defense (DOD)

The Immigration and Nationality Act (INA) defines a specialty occupation as:

  • Theoretical and practical application of highly specialized knowledge, and

  • Bachelor’s or higher degree or equivalent in specialty occupation as a minimum for entry into the occupation in the U.S.

The position must meet one of:

  1. At least a bachelor's degree or equivalent for entry into the particular position; or

  2. Degree requirement is common in industry in parallel positions among similar organizations or the particular position is so complex or unique that a degree is required; or

  3. Employer normally requires a degree or equivalent; or

  4. The nature of specific duties is so specialized and complex that knowledge required for the job is associated with having a degree

Evaluation criteria:

  1. Actual requirements of position;

  2. Knowledge, both theoretical and applied gained mostly at an educational institution;

  3. Precise and specific course of study relating to the position;

  4. Obtaining a college degree in business or liberal arts is not of itself enough.

As a part of the H-1B petition process, a Labor Condition Application (LCA) must be obtained from the Department of Labor in the occupational specialty. The requirement applies to all H-1Bs including fashion models and physicians, but not to the person providing service related to Department of Defense cooperative research and development project or co-production project. LCAs are also required for H-1B1's and E-3's. There are special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent.