​​​​​​Hyden Zakheim, LLP​

Attorneys at Law

(925) 831-0636

Providing effective representation locally, since 1991.

H-1B Specialty Occupation and

H-4 Family of H Visa Holder

There are three main factors to the H-1B visa: 

1) the foreign worker must have at least the equivalent of a US Bachelor’s degree in a field related to the position he/she is filling,

2) the position or occupation the foreign national is filling must be defined as a “specialty occupation”, and

3) the company must pay the foreign worker the “prevailing wage”, provide proper notice to its work force and may not be in a strike or lock-out.

What does “specialty occupation” mean?

First, a “specialty occupation” requires no less than a Bachelor’s degree as a minimum for entry into the occupation. It is important to note that this is measured by the US Department of Labor, not by the employer or employee. For example: employer X requires all it’s Data Entry employees to have no less than a Bachelors Degree. This position does not qualify as “specialty occupation” because The US Dpt. Of Labor does not indicate that all data entry positions require a Bachelor’s Degree. Compare this to a position as a software engineer: such position requires a Bachelors Degree according to the Dpt. Of Labor, and therefore qualifies as a “specialty occupation”.

What is the maximum term of an H-1b visa?

H-1b visas are usually granted for a three year period, but may be extended another three years without requiring the foreign national to leave the country. There are some limited circumstances where the H-1b can be extended even further. Generally speaking, once the six years are up, the foreign worker must return to his/her homeland and remain there at least one year prior to applying for another H-1b.

I am here on an H-1b and received a better job offer from another employer! What to do?

The H1b you were granted allows you to work for the petitioning employer only. You may switch employers only after your new employer files an H1b petition for you.

My spouse is here on an H-4 with me, may she work? Can my H-4 children attend school?

Yes, your children may attend public elementary and secondary schools. However, neither your spouse nor your children may work. An H-4 visa may be subject to a change of status to another non-immigrant employment visa if proper qualifications are met.