With fierce competition for jobs in the United States, and demand for visas to enter the U.S. grows daily, the H-1B visa requirements can be difficult to meet because you must first be offered employment by a U.S. employer who is willing to sponsor you. Furthermore, there is a limit on the number of these visas granted each year for certain first time prospective H-1B holders. Ensuring you have all the information upfront will avoid costly mistakes.
The H-1B visa is a special visa that allows foreign nationals to enter the United States to perform “specialty occupations.” A specialty occupation requires, at minimum, a bachelor’s degree or enough work experience that equates to a U.S. bachelor’s degree.
This work can be in many fields, to include:
⦁ Architecture, engineering, mathematics, sciences, medicine, health, education, business, law, accounting, theology, the arts, and more.
Because there is a lot of demand for this visa, there is a cap on the number of visas that can be issued each year. Currently, the cap is at 65,000 visas per fiscal year. If you have a master’s degree from a U.S. institution, then you’re in luck: an extra 20,000 visas are available for those with a master’s degree or higher. Suppose the employer who is sponsoring you is an institution of higher education, a nonprofit organization connected to an institute of higher education, or a government research organization. In that case, the visa cap does not apply.
What are the benefits of the H1B visa?
There are many benefits to having an H-1B visa. Here are just a few:
1. You can legally work in the United States. This allows highly qualified individuals to work and live in the US. This benefits both the beneficiaries and the U.S. economy.
2. You can simultaneously pursue permanent resident status or a path to the green card. The H-1B visa is a dual intent nonimmigrant visa. This means that you are not required to have the intent to exit the U.S. when holding this visa.
3. Your dependents can come to the U.S. with you. Your spouse and dependent children (unmarried and under the age of 21) are eligible for H-4 status. This means that they can come to the United States with you. Those with H-4 status may attend school, and the H-4 visa spouse can work so long as the H-1B holder has an approved I-140.
4. H-1B visas have portability. One big advantage of H-1B visa is the portability benefits. If you are on an H-1B and change employers, you can begin working for a different employer upon filing your new petition.
How to Apply for the H-1B Visa?
Here are the steps you need to go through to apply for the H-1B visa:
⦁ Make sure you qualify for the H-1B visa.
⦁ Find a petitioner by applying for a job opening in the United States.
⦁ If this is your first time applying for an H-1B visa for a for profit institution, you will need to be placed in the H-1B lottery to be selected to apply for the visa.
⦁ Have the petition initiated by your employer.
⦁ Apply for the H-1B visa at your home country’s nearest U.S. Embassy/Consulate or inside of the U.S. as a change of status application.
What are the requirements for the H-1B visa?
There are many conditions to meet for an H-1B visa. An immigration lawyer like myself can help determine if you meet these provisions. Direct U.S. Immigration can also help you organize evidence to prove eligibility. Please be aware that those working on an H-1B are subject to random site checks to ensure the individual is working at the right location, under the correct job title, and being paid the required minimum salary that the DOL approves.
1. You must have a job offer from a U.S. company.
The employer must extend a bona fide job offer to the beneficiary. This can be through a written contract or, if there is no written contract, through a summary of an oral agreement.
2. There must be a valid employer-employee relationship.
This is an important and mandatory condition. For a valid employer-employee relationship, there must be employer control. Control is the ability of the petitioner to determine when, where, and how the beneficiary completes his/her duties. USCIS will deny a petition if the beneficiary is not an employee or does not report to the petitioner.
3. There must not be any labor disputes or strikes at the workplace in the H-1B classification sought for.
USCIS will deny the petition if there is a strike or other labor dispute at the prospective beneficiary’s worksite in the H-1B classification sought for the new employee.
4. The job must be considered a specialty occupation position.
A specialty occupation requires theoretical or practical knowledge of a field. To learn whether your job qualifies as a specialty occupation, you should reference:
– The Department of Labor’s Occupational Outlook Handbook (OOH),
– The Department of Labor’s O*NET online system,
– and/or the Department of Labor’s Dictionary of Occupational Titles.
5. The job must require a bachelor’s degree or higher (or equivalent).
The job must require a U.S. bachelor’s degree (or higher) in a specific field of study related to the occupation or its equivalent. Not all foreign degrees titled “bachelor’s degree” are equivalent to a U.S. institution’s bachelor’s degree.
Therefore, USCIS typically requires a credentials evaluation of your foreign degree and transcript. This will help prove that you meet the H-1B bachelor’s requirement. The American Association of Collegiate Registrars and Admissions Officers Electronic Database for Global Education (AACRAO EDGE) is the most popular credentials evaluator.
EXCEPTIONS:
If you do not have the academic requirements standard for the job, you can still qualify for an H-1B. This can be done through education, training, and work experience. Here, a petitioner must demonstrate that the previous experience is equivalent to the required degree.
6. The sponsoring company must pay all relevant fees.
For an H-1B petition, the employer must pay all relevant fees.
7. You must have licensure (if required by federal, state, or local law).
If the position requires a license, the beneficiary generally must be licensed before the H-1B approval.
There are only two exceptions to this rule:
⦁ If the state does not require a permanent license
⦁ If the state allows unlicensed people to practice under the supervision of a licensed supervisor
Those in healthcare professions should be aware that state guidelines supersede OOH requirements. Those primarily involved in research or teaching (not patient care) do not need a license. Additionally, some other exceptions may exist for certain applicants in healthcare professions.
H-1B Visa Numerical Limitations
You should be aware of the numerical limitation on H-1B visas. Every year, 65,000 H-1Bs are made available, with an additional 20,000 visas reserved for those with advanced degrees.
Any petition not registered or chosen in the lottery after the final receipt date will be rejected. Furthermore, any petition missing mandatory documents and/or fees will be rejected as well. It is critical to be on top of your H-1B visa application process. An immigration lawyer can help ensure that you maximize your likelihood of success.
Due to the lottery, many qualified applicants may never be reviewed. Certain prospective reforms have been pushed to change this process. Some advocates believe H-1Bs should be reserved for the highest-paid or the most-skilled beneficiaries. Yet, this has not been implemented, and the lottery system is our current process.
Currenlty, we have a special lottery system for the advanced degree holders which is held before the regular lottery. If a beneficiary with an advanced degree is not chosen in the first lottery (20,000 designated spots), a second chance will be given in the general lottery (65,000 designated for all others).
It is important to note that for the advanced degree holders, not only does the applicant need to have an advanced degree, but the job position must require the advanced degree as its minimum academic threshold.
Who files the petition?
A U.S. company must file the petition on behalf of a foreign national who will receive the H-1B visa. The U.S. company is called the petitioner, and the foreign national is called the beneficiary.
A petitioner must:
⦁ Have extended a job offer to the beneficiary;
⦁ Have a valid employer-employee relationship with the prospective beneficiary; and
⦁ Have an Internal Revenue Service Tax identification number.
Petitioners can only file one petition per beneficiary in any given calendar year for the lottery system. If a petitioner submits more than one application, the petition or visa will be denied or revoked.
However, multiple different companies can submit a petition for the same beneficiary. Here, each entity must have its own Federal Employer Identification Number. Additionally, they must have their own legitimate need to hire that beneficiary.
H-1B Visa Process
The H-1B visa is a multistep process. The following is a general guideline followed by a more detailed explanation:
⦁ Apply for the H-1B Registration period;
⦁ If selected in the lottery, submit an H-1B application;
Receive approval;
⦁ If abroad, obtain an H-1B visa stamp at an Embassy or Consulate; and
⦁ Begin work in the United States.
H-1B Visa Documents
Many documents are required during the H-1B visa application process. The following is a general list. Please be aware this is not a comprehensive list, and the documents you will need will vary based on your individual case:
⦁ Basic company information
⦁ A detailed job description
⦁ A certified Dept. of Labor LCA
⦁ Diploma and transcripts or certifications, accompanied with credentials evaluation (if applicable)
⦁ Evidence of licensure (if applicable)
⦁ Support letters from previous employers (if applicable)
⦁ Biographic page(s) of passport(s) for the applicant and any dependents
H-1B Visa Processing Time
The amount of time it takes between an H-1B filing and the receipt of approval depends on a wide range of factors. These factors include:
– whether premium processing is available and was elected,
– which type of H-1B visa you are requesting (cap-exempt, advanced degree, regular),
– which USCIS Service Center is processing the case,
– and which U.S. Embassy or Consulate your passport is stamped at (if you are abroad).
Thus, the processing can take anywhere from 15 days to over six months. Additionally, regardless of the approval date, beneficiaries will not be eligible to work until October 1st following the lottery.
H-1B Visa to Green Card
While on an H-1B visa, you can apply for permanent resident status. Furthermore, those awaiting an immigrant visa priority date may be eligible to stay in the United States on an H-1B for longer than six years if you have an approved I-140. If you have any questions about going from an H-1B visa to permanent resident status in the United States, an immigration lawyer, such as myself or another member of my team, can provide further information.
H-1B Visa Exceptions
Citizens of Chile and Singapore are eligible for H-1B1 status. H-1B1 visas are valid for up to 18 months and can be renewed indefinitely. You can apply either through USCIS or at a U.S. consulate abroad. Those under H-1B1 status are not counted toward the 65,000 visa cap and are not subject to the same six-year maximum stay as those on the H-1B.
Conclusion
The H-1B visa is one of the most popular avenues for foreign nationals to perform specialty occupations in the United States. You should now have a much stronger understanding of the aspects of the H-1B visa, including the H-1B visa benefits, requirements, and the visa application process.
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