What is Specialty Occupation Classification?
“This nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.”
Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption.
For additional information regarding the H-1B cap, cap qualifications, and H-1B petitions, see the U.S. Citizenship and Immigration Services (USCIS) website.
What are the General Requirements for This Type of Non-Immigrant Classification?
The Occupation Requires:
- Theoretical and practical application of a body of highly specialized knowledge
- Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States
Criteria For Specialty Occupation:
The position must also meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree*
*(For more information, see 8 CFR §214.2(h)(4)(iii)(A).
What About a Foreign Degree?
A Foreign Degree is Acceptable too If It Meets the Following Criteria:
- Have education
- specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation
- Have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty**
**For more information see 8 CFR §214.2(h)(4)(iii)(C).
Is Labor Condition Application Required for This Classification?
The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129, Petition for a Nonimmigrant Worker
See the links to the DOL’s Office of Foreign Labor Certification and USCIS forms
DOD Cooperative Research and Development Project Workers
This is a very niche specialty occupation with additional requirements:
The job must require a bachelor’s or higher degree, or its equivalent, to perform the duties. The petition must be accompanied by:
- A verification letter from the DOD project manager for the project stating that the beneficiary will be working on cooperative research and development project or a coproduction project under a reciprocal Government-to-Government agreement administered by DOD. Details about the specific project are not required
- A general description of the beneficiary’s duties on the project and the actual dates of the beneficiary’s employment on the project
- A statement indicating the names of noncitizens currently employed on the project in the United States and their dates of employment and the names of noncitizens whose employment on the project ended within the past year
To be eligible for this classification your prospective employee must have a baccalaureate or higher degree or its equivalent in the the occupational field in which they will be performing services. This requirement can be met based on one of the following criteria:
- Hold a U.S. bachelor’s or higher degree required by the duties from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree from an accredited college or university
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the duties of the job and be immediately engaged in that specialty in the state of intended employment
- Have education, specialized training, or progressively responsible experience in the specialty that is equivalent to the completion of a U.S. bachelor’s or higher degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty
Please Note: You don’t need to File for Labor Condition Application for this Visa Classification.
H-1B3: Fashion Model
- The position/services must require a fashion model of prominence.
- To be eligible for this visa category you must be a fashion model of distinguished merit and ability.
Is Labor Condition Application Required for This Classification?
The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129, Petition for a Nonimmigrant Worker.
How and When to Apply FOR LCA?
- Prior to filing a petition with the U.S. Citizenship and Immigration Services or obtaining a visa through the Department of State, employers must submit a Labor Condition Application (LCA/Form ETA-9035E/9035) to the Department of Labor attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program
- LCAs must not be submitted more than 6 months before the beginning date of the period of employment
- LCAs must be filed electronically with the Department through the FLAG System.
- The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E through the FLAG System. Before filing an LCA by mail on Form ETA-9035, an employer must first petition the Administrator of OFLC for special permission to do so
Documents Required to Be Submitted
- The H-1B, H-1B1, and E-3 programs are attestation-based programs
- The employer submits a Labor Condition Application (Form ETA-9035E [electronic]) to the Department through the FLAG System unless the employer is permitted to file by mail
- The employer attests to the truthfulness and accuracy of the information entered on the LCA. The burden of proof is on the employer to establish the truthfulness of the information contained on the LCA
Where to Apply FOR LCA?
- Electronic Filing of Form ETA-9035E on the FLAG System: https://flag.dol.gov
- Special Permission to file an ETA-9035 by mail: Employers must file using the electronic FLAG System, except in two limited circumstances for employers with physical disabilities or lack of internet access prohibiting them from filing electronic applications
- Employers may submit a written request for special permission to file their LCAs by U.S. mail
- The employer’s written request must establish the need to file by mail
- The employer should be prepared to submit supporting documentation if requested by the OFLC
- The OFLC Administrator must approve the request before the employer may file by mail
- The request for special permission should be sent to the Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, Room N-5311, 200 Constitution Ave-NW, Washington, DC 20210
What Happens After You Submit LCA for Your Employee?
- LCAs are reviewed by the Department within seven (7) working days for completeness and obvious errors or inaccuracies
- Employers may check the status of applications that they have submitted to the Department and directly access their certified applications at any time by logging onto the FLAG System
- Employers with certified LCAs may proceed with the process of obtaining an H-1B USCIS and the Department of State
- LCA Questions: Employers with questions about filing an LCA may contact the LCA Help Desk by e-mail at Chicago@dol.gov or by telephone at (312) 353-8100.
- LCA Status Inquiries: Employers may obtain the status of their LCAs at any time by directly accessing the FLAG System.
- Technical Assistance: Employers requiring technical assistance with the FLAG System or an electronic LCA may complete and submit the Flag Technical Help Request Form at https://flag.dol.gov/support/contact.
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