This article is a continuation of the H-1B overview provided in our previous discussion, which you can access here.  Now that you have a general concept of the H-1B, we will turn to some of the specific features of the program.

Your Employer

First of all, realize the H-1B visa must be petitioned (i) by  a particular employer, (ii) offering a particular job (iii) in a particular place.  If any one of these three things changes during the  process of petitioning for your initial H-1B visa, you are probably going to have problems.

So, you will want to be sure you are in solid with the company sponsoring the visa and that both you and your boss are very clear about the job you going to take.

Now, that is not the case once you are admitted as an H-1B employee.  At that point, changing from one employer to another is fairly common, and the process is straightforward, as long as you are working in the same or similar job capacity.

Your visa will be considered “portable” if you meet these three requirements:

(1) you were lawfully admitted;

(2) you have not worked without authorization; and,

(3) your new petition is timely and nonfrivilous.

The Job

Probably the most identifying feature of this visa is that it is intended for a “specialty occupation.”  So, what does that mean?

The job must require highly specialized knowledge and a bachelor’s degree or higher in a related field.

Let’s look more closely at this requirement.  To qualify as a specialty occupation, the position must meet one of the following:

1. A bachelor’s degree or higher in a specific field as an entry-level requirement.
2. The degree requirement is accepted industry-wide among similar companies or the particular position is so complex or unique that it requires someone with a degree.
3. The employer normally requires a degree or its equivalent for the job (look to other employees in the same position).
4. The complexity of the job duties is usually associated with a degree.

By way of illustration, here are some examples of fields typically deemed to meet the criteria:

Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts.

Some common examples of job titles that qualify are:

librarians, psychologists, financial analysts, systems analysts, journalists, editors, technical publications writers, management consultants and market research analysts.

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Your Qualifications

Once it is established that the job does qualify as a “specialty occupation,” then you have to demonstrate you  meet the qualifications for the job.  To do so, show one of: the following:

1. US Degree. You hold a US degree required for entry into the occupation. The type and level of degree will depend on the occupation. The degree must be in a specialized course of study.
2. Foreign Degree. You hold a foreign degree determined by experts to be equivalent to the US degree.
3. Licensure. You have an unrestricted state license, registration or certificate, authorizing immediate and full practice in the occupation in the state of intended employment.
4. Equivalence. If you do not hold a degree, or you do not have the specific degree normally required for the job, you may be able to establish equivalence by showing you have education, specialized training and/or experience that is equivalent to completion of the requisite degree and there has been recognition of your expertise through progressively responsible positions directly related to the specialty.

(1) Proving Equivalence To College Degree. Equivalence to completion of the requisite degree must be determined by one of the following:

(a) Life Experience Evaluation. This requires an evaluation by an official who has authority to grant college level credit in the specialty occupation for experience at an accredited college having a program for granting life experience credits. However, there are not many schools with such programs.

(b) College Level Equivalency Exam. This requires a recognized college-level equivalency examination or *111 special credit program, such as CLEP (College Level Examination Program) or PONSI (Program on Noncollegiate Sponsored Instruction).

(c) Evaluation by Credentials Evaluation Service. This requires an evaluation of the alien’s education by a reliable credentials evaluation service.

(d) Certification By Professional Society. This requires certification by a nationally recognized professional society that grants such certification based on achievement in the specialty. The society must have objective membership criteria requiring competence in the field. Caution should be exercised where the association requires less than the CIS’s “3 for 1” formula discussed below.

(e) CIS “3 for 1” Determination of Equivalence and Recognition of Expertise.  Under the “3 for 1” rule of degree equivalence, you must have three years of specialized training or work experience for each year of college-level education. Your training and work experience must have been at a specialty occupation level and must have been gained while working with peers, supervisors, or subordinates who do have the degree or its equivalent.

The Evaluation. Evaluation should show satisfaction of the 3 for 1 test and equate education and experience to a specific level of college education, resulting in a “transcript” of courses equivalent to the alien’s level of knowledge in the occupation. Evaluation can be based on a personal interview, review of statements of supervisors and colleagues, the work product and academic record, tour of the work site, etc.

Equivalence to Advanced Degree. If the job requires a Master’s degree, you must have a bachelor’s followed by at least five years of progressively responsible experience in the specialty. If a Doctorate is required by the specialty, you must hold the Doctoral degree or its foreign equivalent.

Recognition of Expertise. To prove you have recognition of expertise in the specialty, show one of the following:

• recognition of expertise in the specialty occupation by two “recognized authorities” in the occupation;
• membership in a recognized foreign or US association or society in the specialty occupation;
• published material by or about you in professional publications, trade journals, books or major newspapers;
• licensure or registration to practice in the specialty occupation in a foreign country;
• achievements a recognized authority has determined to be significant contributions to the field.

Final Thoughts

To recap a couple of important points contained in the first part of this H-1B review, your employer must pay you the higher of the actual wage or prevailing wage.

Also, you can work for up to six years in the U.S., authorized in maximum periods of three years at a time. Note the six-year limit does not apply if you work less than six months each year in the United States or you reach certain milestones in the employment-based green card process.

Finally, your dependent family members (spouses and children under age 21) are eligible for H4 visas to accompany you. However, the H4 visas do not allow for employment in the U.S.

~ Jeff Harrington, Esq.