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Jian Law Group

Profession employees and “specialty occupation” (H-1B visa):

The United States Citizenship and Immigration Services (USCIS) issues the H-1B visa, which allows the U.S. employers to hire foreign nationals to live and work in the United States for temporarily in a “specialty occupation”. A “Specialty Occupation” requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. H-1B visa also comes with limited approval each year with worldwide annual quota of 65,000 visas issued and the additional special quota of 20,000 visas available for holders of master’s or higher degree from US graduate schools.

The duration of stay available on H-1B status is up to six years with initial stay of three years and one extension available for another three years. After the six-year term, individuals must depart the US and relocate overseas for one year before he/she can be given another H-1B visa or L-1 visa to enter the U.S. again. However, if a Labor Certification application or an Employment-based immigrant visa petition filed by their sponsored employers on their behalf has been pending for a period of at least 365 days, or approved at the expiry of the sixth year stay, then H-1B extensions will be granted without having to complete the 1 year foreign stay. The details with regard to recapture of unused H-1B validity and extensions beyond a period of six years, please contact Jian Law Group for customized advice.

At Jian Law Group, we help our clients successfully obtain H-1B visa; at the same time, if employers sponsor permanent residency for their H-1B employees, our team will provide the services on labor certification and EB-2 or EB-3 employment-based immigration. The term “specialty occupation,” which will be the core for the H-1B consideration, is referred to Bachelor’s degree, or its equivalent. It is normally the minimum entry requirement for the position. Even though a foreign national possesses a bachelor or higher degree related to the position applied, if the position itself does not require the minimum entry of a bachelor’s degree, then this individual will not be granted H-1B status.

Another point to be mentioned is that the determination for whether or not that the “specific position” will be counted towards the “specialty occupation” solely depends on the “job duties” performed and not on the “name of the position”. If a foreign national with a law degree applies for a job position as a law specialist in a law firm in the U.S., however, the main job duties of such position is answering the phones and copying/mailing/filing, though the title suggests a “specialty occupation”, this individual will still not be granted for H-1B status because USCIS will see that the job duties doesn’t match its title.

The spouses and unmarried children under the age of 21 hold H-4 status with the period of stay according to the H-1B visa holders. Even though individuals who hold H-4 status are not allowed to work (some H-4 visa holders may be eiligible to work depending on the current status of the H-1B beneficiary), their children can attain public school or obtain driver’s licenses while in the U.S. For more information regarding H-1B visa, please contact us for a prompt reply.   






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