For employers
H-1B Specialty Occupation
The default route for hiring foreign professionals, and the one with the most moving parts.
What the category requires
H-1B is available for positions that qualify as specialty occupations: roles requiring the theoretical and practical application of a body of specialized knowledge, and requiring at least a bachelor's degree, or it's U.S. equivalent, in a specific specialty as a minimum for entry.
The analysis that decides most contested cases is the nexus between the degree field and the duties.
The cap and registration
Most H-1B petitions for new employment are subject to an annual numerical limit, reached through an electronic registration and selection process that runs on a fixed calendar. Registration mechanics, the selection methodology, and the fee structure have all changed in recent cycles.
Cap-exempt employment
Not every H-1B is subject to the lottery. Institutions of higher education, certain affiliated nonprofits, nonprofit research organizations, and government research organizations are exempt. Concurrent employment arrangements can sometimes reach candidates who would otherwise be capped.
LCA obligations
An H-1B petition requires a certified Labor Condition Application, and that certification carries continuing obligations: wage requirements, notice requirements, and a public access file you must maintain and produce on request. These obligations outlive the filing and are the most common source of DOL enforcement exposure.
Amendments and changes
Material changes to the terms of employment can require an amended petition before the change takes effect. Worksite changes are the most common trigger and the most commonly missed, including changes that feel administrative, like a move across a metropolitan boundary.
Extensions beyond six years
H-1B status is subject to a maximum period, with statutory provisions permitting extension beyond it where a labor certification or immigrant petition has been pending or approved for long enough. Those provisions are the reason PERM timing and H-1B timing are the same conversation.
Dependent family members
H-4 dependent spouses may be eligible for employment authorization in defined circumstances tied to the principal H-1B visa holder's green card progress.
Where employers get into trouble
- Starting PERM too late to support an extension beyond the sixth year
- Worksite changes without amendment
- Public access files that were never assembled
- Assuming the lottery (annual H-1B electronic selection) is the only route
Related
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[email protected] · (508) 591-0775 · Kingston, Massachusetts