The H-1B program allows companies and other employers in the United States to temporarily employ foreign workers who wish to perform services in a specialty occupation (H-1B), services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project (H-1B2), or services as a fashion model of distinguished merit or ability (H-1B3).
To establish that a job qualifies as a specialty occupation for H-1B, H-1B2, or H-1B3 under USCIS regulations, one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent is the regular minimum entry requirement for the position
- The required degree must be related to the position
- The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attaining a bachelor’s or higher degree.
For you to qualify to perform services as a Specialty worker (H-1B) or DOD Researcher and Development Project Worker (H-1B2), you must meet one of the following criteria:
- Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
- Hold a foreign degree that is equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
Have education, specialized training, or progressively responsible experience in the specialty equivalent to completing a U.S. bachelor’s or higher degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to it.
To be eligible for H-1B3:
- The position/services must require a fashion model of prominence.
You must be a fashion model of distinguished merit and ability.
Petition Filing Process
Step 1: (only required for specialty occupation and fashion model petitions): Employer/Agent Submits a Labor Condition Application (LCA) to the Department of Labor for Certification.
LCAs must not be submitted more than 6 months before the beginning date of the period of employment.
Step 2: Employer/Agent Submits Completed Form I-129.
Include the DOL-certified LCA (only for specialty occupations and fashion models).
Step 3: Approval. Prospective Workers Outside the United States Can Apply for Visa or Admission.
- Once the Form I-129 petition is approved, if the prospective H-1B worker is outside the United States, he or she may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa.
Regardless of whether a visa is required, the prospective H-1B worker must apply to U.S. Customs and Border Protection (CBP) for admission to the United States in the H-1B classification.
Please contact our office today to schedule a consultation with Attorney Sarah Mu, she can successfully help you navigate the complex H-1B process.