H-1B visa is available to an alien who is coming temporarily to the United States to perform services in a specialty occupation; or to perform services of an exceptional nature requiring exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project or co-production project; or to perform services as a fashion model of distinguished merit and ability.
The petitioner is required to submit the following with an H-1B petition involving a specialty occupation:
- A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,
- A statement that it will comply with the terms of the labor condition application for the duration of the alien’s authorized period of stay,
- Evidence that the alien qualifies to perform services in the specialty occupation
To qualify to perform services in a specialty occupation, the alien must meet one of the following criteria:
- Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university; or
- Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
- Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Specialty Occupation: Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
To qualify as a specialty occupation, the position must meet one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position 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; or
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Duration of Stay
Under current law, one can be in H-1B status for a maximum period of six years at a time. After that time the beneficiary must remain outside the U.S. for one year before another H-1B petition can be approved. However, foreign nationals working on defense department projects may remain in H-1B status for ten years.
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