H-1B Visa for Specialty Occupations

Luscutoff, Lendormy & Associates helps businesses with all their immigration needs. However, the USCIS rulings and United States quota system for H-1B visas often seem to change quickly and without logic and without sensitivity to the needs of businesses and long range business plans.

Our San Francisco immigration lawyers respect a business’ need to quickly obtain H-1B visas for important workers. Luscutoff, Lendormy & Associates’ immigration law department monitors the USCIS rules and USCIS publications; and then we give our clients advance notice of new deadlines and H-1B visa requirements that may affect their business plans.

The H-1B visa, a nonimmigrant visa, is available to companies and other employers to temporarily hire foreign nationals who are able to qualify as individuals in “specialty occupations.” According to applicable statutes in the United States Code and US federal regulations, the H-1B visa may be awarded to:

“An alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge…minimum requirement for…[performing the job]…and who is qualified to because he/she has attained a baccalaureate, or higher degree or its equivalent in the specialty occupation.”

The United States Code of Federal Regulations applicable to the H-1B visa process defines the so-called “Specialty occupation” as:

“An occupation which requires theoretical and practical application of a body of highly specialized knowledge […] in such fields […as…] architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires […specific college degrees…] as a minimum for entry into the occupation in the United States.”

With this in mind, for a position to qualify as a specialty occupation, the employer must show that the position involved requires at least one of the following minimum qualifications:

  • The position that petitioner urges is a “specialty accupation” which, at a minimum, requires a baccalaureate or higher degree (or its equivalent).
  • The degree requirement is “Industry Standard” for comparable positions among similar organizations. Alternatively, an employer may show that its particular position is so unique or complex that it can only be performed by an individual with a baccalaureate degree or higher.
  • The employer normally requires a specific U.S. college degree or its equivalent for the position.
  • The job’s specific duties are so complex and specialized that knowledge required to perform the duties is usually associated with the possession of a baccalaureate or higher degree.

Bearing in mind these rules (above), the San Francisco immigration law department of Luscutoff, Lendormy & Associates reminds foreign workers that to receive an H-1B non-immigrant visa, the petitioning foreign national must:

  • Hold a U.S. baccalaureate or higher degree from an accredited college or university in, or that is otherwise required for, the specialty occupation.
  • Alternatively, the petitioner should hold a foreign degree equivalent to a U.S. baccalaureate (or higher) degree required by the specialty occupation.
  • As and when required for certain specific jobs, hold an unrestricted State license, registration license or certification which allows the foreign national to practice the specialty occupation and to engage immediately in that specialty in the particular state where the job is located.
  • Have recognition of expertise in the specialty based on increasingly responsible positions directly related to the specialty, and have specialized training, education, and/or progressively responsible experience that is equivalent to the completion of a U.S. baccalaureate degree (or higher) in the specialty. The rules allow that three years of appropriate experience can equal one year of college credit.

Labor Condition Application: From a timing standpoint, before an H-1B visa petition is filed with USCIS, the prospective employer must first file a labor condition application (“LCA”). This LCA is filed with the Department of Labor’s Employment and Training Administration (“ETA”). The LCA application, filed on form ETA 9035, is extremely important.

Frustrating though it may be, the LCA must first be certified by the Department of Labor; and, only then, after DOL certification has been approved, will USCIS determine if the application actually involves a “specialty occupation”. Finally, only after these “LCA” steps are followed, USCIS then will evaluate the file and determine (under its rules) whether the foreign national qualifies to perform services in the specialty occupation.

Our San Francisco law firm’s immigration department attorneys recommend some overall strategic awareness when an H-1B visa petition is considered. It is important for employers to remember that the foreign national for whom they are petitioning must be in “valid non-immigrant status” until October 1st of the current year. If the foreign national will not be in “valid status” before the first day of October, that person may be required to leave the U.S. and obtain an H-1B visa from the U.S. Embassy or Consulate in his or her home country.

Please contact us for assistance with H-1B and other dual intent visas. Luscutoff, Lendormy & Associates San Francisco lawyers and staff are fluent in French, Spanish, Japanese, Cantonese and Vietnamese. We also speak the language of the United States Citizenship and Immigration Services.