H-1B Specialty Occupations and Fashion Models

The H-1B visa is a temporary worker’s visa for certain specialty occupation professionals and fashion models. There are three different categories of jobs under the H-1B visa. These categories will be discussed below.

Specialty Occupations

To qualify for this temporary work visa, you must show that the job is a specialty occupation by showing proof that:

  • The Job requires a Bachelor’s or higher degree or its equivalent
  • The degree requirement for the job is specific to the industry or the job can only be done by a person with the degree
  • The employer usually requires a degree or its equivalent for the position
  • That the knowledge required to do the job is usually associated with the degree.

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • You have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
  • You hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
  • You hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
  • You have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

If you meet all eligibility requirements, the employer must file the I-129 Petition for Alien Worker along with evidence that you meet the criteria and with the approved Labor Conditions Application (LCA).

H-1B2 Department of Defense (DOD) Researcher and Development Project Worker

To qualify for this temporary work visa as a DOD Researcher or project worker, you must show that the job position and your qualifications meet certain requirements. The job must meet both of the following criteria to qualify as a DOD cooperative research and development project:

  • The research and development project is under a government-to-government agreement organized by the U.S. Department of Defense; and
  • The job requires a bachelor’s or higher degree.

For you to qualify to accept a job offer in the DOD position you must meet one of the following criteria:

  • You have a U.S. bachelor’s or higher degree related to the specific specialty occupation;
  • You have a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
  • You have an unrestricted State license, registration, or certification that allows you to perform the specialty occupation; or
  • You have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The employer must submit the I-129 Petition but the LCA is not required for this type of DOD occupation.

H-1B3 Fashion Model

To qualify for this temporary work visa as a Fashion model, you must be a prominent fashion model with great ability as a model. This requires evidence of such prominence and ability as well as the approved LCA. The employer must file the petition I-129 and submit the required documentation.

Labor Condition Application(LCA)

Generally, the employer must have the approved LCA from the Department of Labor (DOL) and then file it with I-129 Petition. The LCA is required for the H-1B specialty and H-1B3 fashion model occupations. The LCA requires the employer’s attestation that the employer will follow certain labor requirements which are:

  • The employer will pay a wage that is no less than the wage paid to similarly situated and qualified U.S. workers. If the wage is more than the similar U.S. worker then the employer must show that the wages thetwage is the prevailing wage for the geographic area; and
  • Working conditions will not adversely affect other similarly U.S. workers. Also, there must be no strikes during the LCA. The employer must notify the union and other workers about the filing of the LCA.

Applying Within the United States

If you are located in the United States, the employer can submit the Form I-129 to change your status in the United States. The employer would attach the evidence to the petition and it would then be processed by the USCIS. The USCIS would make a decision on the application and send the decision notice to the employer. During the process you and the employer should be on the look out for any requests for more evidence, called RFEs. Failure to respond to these may cause a delay or denial of your application.

Before applying for this visa through this process, you should should make sure there are no problematic issues. Each of the pieces of this process can get complicated. If you miss something or make mistakes, it could mean a delayed process or even a denial. It is important to tread carefully and be meticulous through this process.

Applying at the Embassy

If you are outside of the United States, and the USCIS approves the petition, you will apply to the embassy in your country for the visa. The employer would need to forward the approval notice to you and then you would need to follow embassy instructions to apply for the non-immigrant visa. The embassy in your home country schedules the visa interview. The officer will review all documentation and your application at the interview and inform you of the decision at the interview.

If approved for the visa, you’ll get a period of 3 years to stay in the United States to work, with a maximum of 6 years to extend (exceptions may apply). You are permitted to take your spouse and child(ren) with you to the United States as well. Your spouse would be eligible for an H-4 visa which allows work authorization.

When considering whether to go through with this type of visa application, it is important to take other circumstances and factors into consideration. Failing to do this may cause complications during the application process. For instance, any facts that involve previous denials, past immigration and criminal violations, previous marriages that involved filings, entry with other types of visas, tax issues, visa overstays, and previous employment in the United States can be just as important as the basic eligibility criteria. A single criminal violation, whether a misdemeanor or more serious, can lead you to be inadmissible to the United States, which may require additional steps to getting the visa, such as a waiver.

It is important to consult an experienced immigration attorney to assist you with your case. An attorney will assist with with applying for the LCA, preparing the petition, assist with gathering evidence, and advocate vigorously for you during the process. Here at ST Law Office, I have dedicated my practice solely to immigration matters and have diverse experience surrounding these issues. I vigorously advocate no matter how simple or complicated the matter. Don’t hesitate to call us at 561-405-4889 or to schedule your initial phone, online or in-person consultation now.

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