H1B VISA: TEMPORARY WORKER VISA GUIDE

H1B VISA: TEMPORARY WORKER VISA GUIDE

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). This way, your H-1B work visa has the greatest chance of acceptance. This guide courtesy of Path Immigration Law will help give you the best chance at doing just that.

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. This may seem simple, but there are some subtle nuances to the H-1B process that you’ll want to keep in mind. Meeting each of these requirements is essential if you want a chance at securing one of these limited opportunities for a visa H-1B from any country. Below we discuss each qualification in further detail:

Bachelor’s Degree or Equivalent

As stated above, an H-1B worker must possess, at minimum, a Bachelor’s degree or its 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 an H-1B. 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 foresee-ability it is obviously important to consult with your attorney prior to 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 the US H-1B visa requirement of a bachelor’s degree. If you’re in doubt about whether your education qualifies, an attorney at Path Law Group can assist you.

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.

When it comes to obtaining an H-1B visa, this sort of combination can be very effective to help ensure you fill in any experience or education gaps you might have. So, it’s important that you consider all relevant experience as it might impact the ultimate outcome of your application for this type of Immigration H-1B visa.

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. Some 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.

Providing Documentation for Your Immigration H-1B visa

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

• A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for any H-1B Work visa application. This can be determined by looking at the OOH or other authoritative labor survey.
• 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; 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 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 that proactively addresses the specialty occupation question can often avoid a request for evidence. As stated above, consultation with your attorney is crucial to getting your H-1B visa approved.

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. Remember, an H-1B is intended for specialized work, which means that minimum salaries for these positions can be high. With an experienced attorney assisting with your application, you can determine whether the wage you are offering or being offered meets the H-1B wage standards.

OTHER CONSIDERATIONS

There are a number of other considerations when applying for an H-1B workers visa including:

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 six 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 three-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. In this way, it’s beneficial to look for opportunities of continued employment within your new specialty position.

If you’re looking to qualify for an H-1B visa, it’s essential that you are prepared for all of the above requirements. If you are a candidate or an employer and are looking for assistance in your application, Path Law Group is here to help with your transition. Contact Path Law today at (323) 342-5100 to get started.