Updated: Oct 23, 2020
First Released: November 2019 / Updated: January 2020
Abstract: Provides an H-1B overview. Describes specialty occupation, temporary employment basics, general steps for getting an H-1B, and ProfVal's role in the H-1B process. Includes the perspective of Samuel Chow, an experienced immigration attorney from Fragomen.
This paper is part of ProfVal’s H-1B series. Nothing in this article or any other article provided by ProfVal can be construed as legal advice. If a lawyer is quoted within the article, they are providing general comments about the immigration process; their comments cannot be taken as legal advice from them or the firm that they represent. Further, a quote by a lawyer does not indicate their agreement or disagreement with any content within this article. There is no affiliation between ProfVal and any other person or organization cited within this article.
What is an H-1B?
The US Government provides different types of visas for foreign, nonimmigrant workers to work in the United States. A foreign worker is someone who is not a US citizen or permanent resident who has been sponsored by a US company or other organization to work within the United States temporarily. “The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the United States.” Said differently, the H-1B enables US companies to more effectively compete globally.
The H-1B visa has incredible demand; in fact, the USCIS received nearly 100,000 applications within five minutes in 2019 and crashed the U.S. government's website.  Part of what makes the H-1B visa so popular for companies and workers is the seeming simplicity of it.
“The requirements to qualify for an H-1B visa are deceptively simple: you have at least an equivalent to a U.S. Bachelor's degree and that you have a job offer from a U.S. employer in a position that requires, at minimum, a Bachelor's degree in a related field (i.e., a specialty occupation). However, there are myriad complexities that make these seemingly basic requirements much more complicated than at first glance. These include very specific wage and reporting compliance requirements, as well as nuanced interpretations of the law.” ~ Samuel Chow (Fragomen)
First, we discuss one of the core H-1B requirements related to speciality occupations.
H-1B occupation requirements: speciality occupation, fashion model, department of defense
The H-1B classification is a specialized non-immigrant visa that enables an employer within the US to hire or “sponsor” temporary foreign worker or “beneficiary” within one of three categories: specialty occupation, department of defense cooperative research and development projects, or fashion models.
Within the category of "specialty occupation", many of the positions that people are hired in relate to STEM disciplines, which is tracked on the USCIS website that shows categories where H-1B recipients are employed such as: computer-related applications; occupations related to engineering, architecture, and surveying; administrative specializations; education; medicine and health; and many other occupational categories.  To be a specialty occupation, a position must require:
"(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Section 214(i)(1) of the INA, 8 USC 1184(i)(1)
In addition to qualifying a position as a specialty occupation, the beneficiary (the person who hopes to work in the position) must also qualify based on one of four criteria: i) earned a relevant U.S. bachelor's degree, ii) earned a foreign bachelor's degree, iii) a state licence that is unrestricted in your area, iv) progressive work experience that is commiserate with a bachelor's degree or above. A beneficiary can also be a fashion model, which simply means that he/she must be a recognized fashion model.
Keep in mind, however, that:
“The USCIS has interpreted "speciality occupation" and what it means to have a "related" degree very narrowly. There may also be issues associated with the specific educational program from which a degree was earned, which could undermine one's eligibility.” Samuel Chow (Fragomen)
It is therefore important to consult an immigration attorney to ensure that your position and the beneficiary meet USCIS specialty occupation requirements.
An H-1B authorization is typically for a maximum of 6 years, but each petition has a maximum of 3 years. After 6 years, the petitioner must either change to another visa or leave the country for a year after which point they can begin a new 6-year process.Rules related to H1-Bs also apply for: H1-B1, which is a classification for workers from Chile and Signapore and for E-3 classifications, which are for Australian workers.
What are the general steps for getting an H-1B?
Before you do anything else, we again recommend working with a qualified immigration attorney. The immigration process can change and there are many sub-steps to the process. No one on the ProfVal.com team is an immigration attorney and we do not (nor will we ever) provide legal assistance, but we can refer you to an attorney. Once you have legal representation, your process will include these steps along with various sub-steps such as the new registration requirement:
File a Labor Certification Attestation (LCA) Petition through the USCIS. The LCA focuses on four primary areas: i) Wages and benefits, ii) Working conditions, iii) Work stoppage, lockout, or strike, iv) notice of intent. At the time of this writing, you will want to look at these pages for: the Labor Certification Registry and Foreign Labor Certification Forms.
Submit your I-129 Petition for a Nonimmigrant Worker form along with your supporting documentation.
Complete your visa application, which includes an interview with your consulate.
What is ProfVal's Role?
ProfVal’s role is to provide an external, unbiased evaluation of positions and the beneficiaries of these positions to demonstrate that: i) a position meets H-1B requirements and ii) that the candidate’s educational and work background qualify him or her for the position based on these requirements. We add transparency to the immigration process, which helps companies with US operations and also foreign workers.
To do this, ProfVal, LLC provides Expert Opinion Letters and Academic Equivalency requirements.
- Expert Opinion Letters (https://www.profval.com/expertopinionletter) can supplement your visa application by explaining whether or how: i) the duties of a position qualify for H-1B speciality occupation or fashion model requirements, ii) how an individual's background qualifies a beneficiary for a position, or iii) the combination of points i and ii. Expert Opinion Letters can be used in an initial application, a Request For Evidence (RFE), or a denial.
- An Academic Equivalency Evaluation from can be used to demonstrate the U.S. equivalency of a foreign-earned degree.
>>Visit ProfVal's Academic Equivalence Page
(C) ProfVal 2020
ProfVal, LLC (profval.com) is a purpose-driven, professor-founded, and ethically-grounded provider of Expert Opinion Letters that can be used to support employment-based visas (H-1B, L1, EB, O). ProfVal is dedicated to helping clients through services built based on an architecture of research. ProfVal is dedicated to helping our communities through our giving site, profval.org.
Zachary Johnson, Ph.D. is the founder of ProfVal, LLC. ProfVal provides Expert Opinion Letters and Academic Equivalency Evaluations to support employment-based visa applications. He has over a decade of experience as a professor, academic researcher, academic program developer, and leader in academics. He has worked with members of the Fortune 500, startups, and nonprofits and has been quoted in US News and World Report, Innovate LI, News Day, Adelphi Business Review, and the AACSB.
Immigration Attorneys interviewed (listed alphabetically by last name)
Samuel Chow represents multinational corporate clients in a wide range of industries, such as information technology consulting, business and management consulting, financial services, healthcare, and entertainment and media. He is also experienced in complex removability issues. He is an associate with Fragomen