The H-1B nonimmigrant visa category allows US employers to supplement the existing labor force with highly skilled specialty workers. The H-1B visa is used by foreign nationals who will be employed temporarily in specialty occupations or as fashion models of distinguished merit and ability.

Specialty Occupation

Criteria for determining whether an occupation is a "specialty occupation" include:

  • Whether a bachelor's or higher degree is normally the minimum requirement for entry into the occupation
  • Whether the degree requirement is common to the industry
  • Whether the employer normally requires a degree or its equivalent for the position
  • Whether the nature of the specific duties is so specialized and complex that knowledge required to perform them is usually associated with having at least a bachelor's degree

Examples of Specialty Occupations

Certain occupations have no trouble qualifying since specialty occupations are deemed to include professions. Examples of occupations that would easily qualify for H-1B status include:

  • Accountant
  • Architect
  • Engineer
  • Lawyer
  • Physician
  • Surgeon
  • Teacher

Job Position Requirements

An employee's job position must require:

  • Theoretical and practical application of a body of highly specialized knowledge to fully perform the job
  • A bachelor's or higher degree or its equivalent as the standard minimum requirement for entry into the position or to get a state license to perform the occupation after passing usual professional tests

Degree Equivalents

There is no equivalent for a doctorate degree. If a job position requires a doctorate, the individual must hold a doctorate. The following are bachelor's and master's degree equivalents:

  • Three years training or experience equals one year of bachelor's education
  • Bachelor's plus five years of progressive experience equals a master's degree

For example, if an individual doesn't have a degree that equals a bachelor's degree, experience in the specialty field may be substituted in place of education at a rate of three years of experience for every year of education that the employee didn't complete. An employee would need at least 12 years of experience in a specialty field to have the equivalent a four-year bachelor's degree. However, the fact that an employee can qualify for a position without a degree may raise a question about whether a bachelor's degree is the normal minimum requirement for the job.

Qualifications of the Worker

Once it's established that the proposed position is a specialty occupation, the worker must show that he's qualified for it. The worker must possess one of the following:

  • A US bachelor's or higher degree required by the specialty occupation from an accredited college or university
  • A foreign degree determined to be equivalent to a US bachelor's or higher degree required by the specialty occupation from an accredited college or university
  • An unrestricted state license, registration or certification that authorizes him to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
  • An education, specialized training or experience that is equivalent to completion of a US bachelor's or higher degree in the specialty occupation

Fashion Models

The eligibility requirements for a fashion model are different from those for specialty occupations. A fashion model may seek nonimmigrant classification under H-1B status as a model of distinguished merit and ability. An applicant must be prominent in the field of fashion modeling.

Fashion Model Requirements

The fashion model must:

  • Have a high level of achievement in the field of fashion modeling shown by a degree of skill and recognition far above ordinary levels
  • Be renowned, leading or well-known in the field of fashion modeling
  • Be coming to the US to perform services that require prominence

Proving High Level of Achievement

The distinction of a fashion model can be shown by submission of two types of documents showing the model:

  • Has achieved national or international recognition for outstanding achievement in her field as shown by reviews in major newspapers, trade journals, magazines or other publications
  • Has performed and will perform services as a fashion model for employers with a distinguished reputation
  • Has received recognition for significant achievements from organizations, critics, modeling agencies or other recognized experts in the field
  • Commands a high salary or other substantial compensation for services shown by contracts or other reliable evidence

Position Requiring Prominent Figure

A petitioner must establish that the proposed position requires a prominent figure by showing one of the following:

  • The services involve events or productions that have a distinguished reputation
  • The organization for which the services will be performed has a record of hiring prominent persons

Questions for Your Attorney

  • Does an H-1B visa allow for a change of status?
  • Does an H-1B visa allow for a change of jobs, and how broad can the description of a job be?
  • Are all teaching positions considered specialty occupations?