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H1B Visa: Specialty Workers

The American H1B Visa is one of the most sought after temporary non-immigrant visas, as it allows qualified foreign workers entry into America for the purpose of undertaking employment. This visa only applies to certain foreign workers, and requires that the American employer petition the USCIS on behalf of the prospective foreign employee.

To obtain an H1B Visa the foreign worker must be employed in a specialty occupation, and the employer (petitioner) must file a labour condition application with the Department of Labor before the visa can be processed.

A labour condition application is a representation the employer has determined the prevailing wage for the position and will pay the employee accordingly.

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A specialty occupation is one which requires:

• Theoretical and practical application of a body of highly specialised knowledge in such fields of human endeavour, such as architecture, engineering, mathematics, physical sciences, medicine and health, education, business specialties, accounting, law, theology and the arts; and
• A bachelor's degree or higher in the specific specialty, or its equivalent.

In order to qualify as a specialty occupation, the foreign employee must meet one of the following criteria:

• Hold an American bachelor's degree or higher as required by the occupation from an accredited college or university, or the equivalent in a foreign degree;
• Hold an unrestricted state licence, registration, or certification authorising full practice of the specialty occupation:
  
  If a temporary licence is available and the foreign person is allowed to perform the duties of the occupation without a permanent licence then a visa may be granted; and
  
  In certain occupations generally requiring a licence, a state may allow an individual to practice the occupation under the supervision of a licensed individual;
• Have education, specialised training, and/or experience equivalent to a bachelor's degree and have the relevant work experience directly related to the specialty occupation;
• An evaluation from an official who has authority to grant credit for the training and/ or experience the employee has undertaken;
• An evaluation of education by a reliable credentials evaluation service that specialises in evaluating foreign educational credentials;
• Evidence or certification of registration from a nationally recognised professional association or society which is known for granting accreditation; or
• A determination by the USCIS has obtained the equivalent professional level through a combination of education, specialised training, and/or work experience in the specialty occupation.

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The H1B Visa is issued for a period of 3 years, but may be extended once if the employer can prove they require the employee for longer and the employee maintains their intent to leave America at the end of the visa extension.