H-1B Visa Guide

The H-1B visa is a non-immigrant classification that allows foreign workers to work in the United States in “specialty occupations” (explained further below). The H-1B is highly sought after and is among the most valuable tools an employer can use to attract skilled foreign labor. Current regulations impose a cap on the number of new H-1Bs that can be issued in a fiscal year. The current limits are 65,000 plus an additional 20,000 visas for applicants with U.S. Master’s degrees or higher.

In recent years the program has become so popular that it is routinely oversubscribed, resulting in a lottery selection process. Since it is impossible to foresee the number of petitions in any given year, it is of utmost importance to have your H-1B petition submitted to USCIS on the first eligible filing day (April 1).

A. THE BASICS

In order to qualify for an H-1B visa one must (1) hold a bachelor degree or the equivalent, (2) work in a “specialty occupation” and (3) earn a wage that is equal or greater than the prevailing wage for the county in which the employment will take place.. Below we discuss each qualification in further detail:

1.     Bachelor’s Degree or Equivalent

As stated above, an H-1B worker must possess, at minimum, a Bachelor’s degree or it’s equivalent in a field related to the offered position. In many cases the nexus between the candidate’s degree and the offered position is clear. However, it is not uncommon that a gray area exists as to whether the candidate’s education qualifies her for the offered position. The USCIS routinely refers to the Occupational Outlook Handbook for guidance as to not only whether a position requires a bachelor’s degree but which bachelor’s degree is required. For example, an employer hiring a Market Research Analyst with a bachelor’s degree in Communications may run into problems since the OOH lists Communications as only one of many fields that can qualify a candidate for the position. Due to this lack of foreseeability it is obviously important to consult with your attorney prior hiring for such positions.

The regulations also allow for candidates to qualify with an equivalent of a bachelor’s degree in a given field. The most common usage of equivalency is that of a foreign equivalent to a U.S. bachelor’s degree. A qualified credentialing company in the US can very easily determine whether the candidate’s foreign degree is equivalent to a US bachelor’s degree.

Another common path to equivalency is by way of specialized work experience in the relevant field. The USCIS’ general rule of thumb is that three years of specialized work in the field is equivalent to one year of college education. Therefore, a candidate with no college-level education could show equivalency by proving 12 years of specialized work in the field of offered employment. In addition, a candidate may use a combination of college-level education along with work experience to show equivalency. For example, a candidate with 3 years of college-level study would need to show 3 years of work experience in the field to satisfy this requirement.

2.     “Specialty Occupation”

The regulations define a “specialty occupation” as one that requires a theoretical and practical application of a body of highly specialized knowledge, and 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. Common examples of such occupations include engineering, medicine, architecture, graphic design, etc.

It is crucial to work closely with your attorney to present adequate evidence of the specialized nature of the position. As stated above, the USCIS relies heavily on the Occupational Outlook Handbook (OOH) to help determine whether the certain job requires a degree. In some cases the evidence is as simple as providing a detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role to be performed, and how the candidate’s degree relates to the role.

In more complicated cases the USCIS may issue a request for evidence to pertaining to the specialized nature of the position. In such cases the USCIS will request evidence proving one of the following :

  1. A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position. This can be determined by looking at the OOH or other authoritative labor survey.
  2. The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
  3. The employer normally requires a degree or its equivalent for the position. This can be shown by providing evidence that previous hires for the same position in the company required a bachelor’s degree or higher; or
  4. 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. 

In our experience a well-prepared initial petition aggressively addresses the specialty occupation question, often avoiding a request for evidence. As stated above, consultation with your attorney is crucial.

3.     Wages

The regulations require that all H-1B workers are paid the prevailing wage as determined by the Department of Labor. Your attorney will help you determine the appropriate wage based on the job requirements.

B. OTHER CONSIDERATIONS

Employer/Employee Relationship

In order for an employer to hire an H-1B worker, the employer must be able to establish an employer-employee relationship with the candidate. This requirement is intended to prevent employers from sponsoring H-1B workers with the intention of subcontracting the workers to a third-party (i.e. Job Shops). The employer-employee relationship should be outlined clearly in the offer letter or contract issued to the prospective H-1B candidate and it should be made clear in the petition how the employer controls the work of the H-1B candidate.

Period of Stay for H-1B Visa:

The H-1B employee can work for up to six years in the U.S., authorized in maximum periods of three years at a time. A worker can work beyond the 6 year maximum in certain scenarios, the two most common being: 1. The worker had a Labor Certification or I-140 petition filed on her behalf at least 365 days prior to expiration of the final year of her H-1B validity and the petition is still pending and; 2. The worker has an approved I-140 but her priority date is not current. The worker in scenario #1 can continue to extend her H-1B for one year at a time. The worker in scenario #1 can extend her H-1B in one year increments and the worker in scenario #2 can extend in 3 year increments.

Termination of employment:

If the employer terminates the H-1B worker, the employer must offer to pay for return transportation to the worker's last place of residence abroad. The return transportation requirement does not apply if the H-1B worker resigns or leaves on his or her own. It also does not apply to H-4 family members.

When the H-1B employment ends, the employer must notify USCIS and have the petition revoked. As long as the H-1B petition remains in effect, the employer must pay the worker's wages.