The position and the professional
An H-1B visa is for qualifying specialty occupation employment. The role must require the theoretical and practical application of highly specialized knowledge and a qualifying degree in a directly related specific specialty.
A generic job description or a preferred degree does not necessarily establish a specialty occupation. Licensure may be a separate issue for regulated professions.
Employer obligations and the cap
The employer generally obtains a certified Labor Condition Application from the Department of Labor and then files the visa petition with USCIS. Wage obligations, worksite information, notice, and public access records require strict compliance before the application is submitted. Remote work and assignments at client locations can affect the analysis.
Many first-time H-1B cases are subject to the annual cap and registration process. Selection does not establish petition eligibility. Certain employers or employment arrangements may be cap-exempt, and a worker previously counted against the cap may have different options. The requirements, regulations, and applicable fees for the H-1B visa category are in constant flux, and must be confirmed with official government sources before proceeding with an H-1B process.
Changing employers and maintaining status
An H-1B transfer is a new employer petition, not a transfer of a visa stamp. Eligible workers may begin qualifying new employment under the portability rules when a properly filed petition is received, subject to the legal requirements. That rule should not be assumed to apply to someone with unauthorized employment or other status problems.
Extensions, amendments, travel, and periods between jobs should be reviewed together. The usual six-year limit has exceptions, including certain cases connected to the permanent residence process. Dependents may be accorded H-4 status, but employment authorization is available only to a limited segment of qualifying H-4 spouses through a separate process.
Preparing the case
Moro Legal can work with the employer and employee to review duties, qualifications, wages, locations, and immigration history. Before a consultation, share with our office the proposed offer letter including detailed job duties, the employee’s resume/CV, any prior visa approval notices for the employee, and the employee’s current I-94 (if any).
Government fees and processing options will vary based on the employer, petition type, and filing date. A petition approval also does not resolve every future travel or visa issuance question.
