The H-1B Specialty Occupation Status was created by the Immigration Act of 1990 to take effect from October 1, 1991 and replaces the previous H-1B Status for Temporary Professional Workers.
The H-1B Specialty Occupation Classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attain a baccalaureate or higher degree or its equivalent in the specialty occupation. Although there is no definitive list of occupations which qualify for H-1B status, specialty occupation is defined to mean: an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such 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 baccalaureate degree or higher in a specific specialty or its equivalent as a minimum for entry into the occupation in the United States. The H-1B Status is only available for aliens who have an offer of employment from a U.S. employer and both the position and the alien are deemed to be of the appropriate level. The Status can be granted initially for a period of up to three years and then extended for a further period of three years.
The key to success in the H-1B area is to be able to prove that both the position offered and the qualifications of the beneficiary rise to the appropriate regulatory required levels. The USCIS is very strict with reference to this standard. It is important to assess the industry-wide requirements for the same type of position, as the USCIS regards this as important. In addition, they are quite interested in the employer’s normal requirements for the position in question. An employer’s historical requirement of a bachelor’s degree in a particular field of study would be persuasive evidence even if the position does not normally require such a degree on an industry wide basis. The salary offered is always relevant and the higher it is (this goes onto one of the forms) the better, consistent, of course, with the LCA wage requirements.
The H-1B visa has an annual numerical limit and only 85,000 “new” H-1B visas are available each fiscal year. This includes 65,000 visas under the regular cap and 20,000 under the master’s cap. This numerical limitation is referred to as H1B cap. Applications that are not chosen under the cap via lottery are rejected.