Publications

November 2009

H-1B, SPECIALTY OCCUPATION

The H-1B classification for specialty employees over the past few years has not been continually available because the H-1 Cap was often used up in one day after the date filing began, namely on April 1st of each year. The H-1B did not take effect until the 1st October of each year. Due to the recession all the 65,000 available numbers have not been used up in the entire calendar year for October 2008 to October 2009 and now the H-1B category is available for workers who have special skills.

The H-1B does not require proof of the maintenance of a foreign residence. A Labor Conditional Application is required to be filed at the Labor Department to prove that the employer will pay the prevailing wages for the employees’ occupational specialty. The job position must be for a permanent position. After an original approval the H-1B employee may accept new employment and on the filing of a new petition with a new employer, the H-1B employee does not have to wait for approval to begin the new employment.

A specialty occupation is defined as one who has theoretical and practical experience of a body of highly specialized knowledge. Attainment of a bachelor’s or higher degree in the specific specialty or its equivalent is required as a minimum for entry into the occupation in the U.S.

The H-1B is approved for 3 years and then an extension may be applied for another 3 years. The maximum period for the H-1B is 6 years. The period of authorized stay, however, may be extended yearly if the H-1B resides less than 6 months a year in the U.S.

EXTENSIONS BEYOND SIX YEARS

If a Labor Certification or a preference petition (I-140) for an employment based adjustment application has been filed and 365 days or more have passed since the filing of the Labor Certification, or the I-140 petition, an H-1B’s status may be extended for one year increments until the permanent residence has been resolved for the H-1B and his/her family.

While the adjustment application is pending, the H-1B may travel without an Advance Parole if the H-1B is returning to the U.S. to work for the employer for whom the H-1B was approved, and the H-1B has a valid visa, and is in possession of the original approval of the H-1B status (the I-797 receipt). Dependent family member may travel abroad under the same conditions.

Fashion models who the can show they are of distinguished ability may obtain H-1B status if the model can prove that he/she is prominent in the field and that the position requires prominence.

Professional Nurses may obtain an H-1B visa if he/she has a college degree or its equivalent in a nursing specialty. Passing the foreign nurse exam and state licensing are required. Also nurses who are certified as advanced practice registered nurses where the employer requires such certification will qualify for H-1B.

Athletes and Entertainers are excluded from H-1B status. To qualify they must apply for O or P status.

Physicians

A foreign physician may enter the U.S. and practice under H-1B status. The physician must be coming to work for a public or non profit private educational or research institute or agency in the U.S. to teach or conduct research or both for the institution or agency. The doctor must have passed the licensing exam, and have competency in oral and written English as proved by passing the Foreign Medical Graduates exams; have a license to practice medicine from a foreign state or have graduated from a medical school in the U.S. or in a foreign state; and if the doctor will provide patient care, the doctor must have a medical license to practice medicine as required by the State of intended employment.

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New York Immigration Lawyers > Immigration Publications > November 2009