The H-1B is a non-immigrant visa which allows U.S. employers to temporarily hire foreign workers in specialty occupations. To qualify for the visa, the Beneficiary (the foreign employee) must have a Bachelor’s degree, the job must require a bachelor’s degree, and there must be a valid employer-employee relationship between Petitioner (the U.S. company hiring the Beneficiary) and the Beneficiary. The petition is filed by the employer and the beneficiary does not even sign the petition.

One of the most attractive aspects of this visa is that it is one of the few non-immigrant temporary visas categories recognized as dual intent, which provides a mechanism for an H-1B visa holder to apply for and obtain a green card in the United States.

One significant disadvantage to the visa is the annual cap of 65,000 visas for bachelor’s degree candidates and 20,000 visas for master’s degree candidates each fiscal year.  The application process starts on April 1st each year and the government will collect petitions for the first 5 days.  In past year, there have been far more applications during that 5 day period ($236,000 last year for $85,000 spots) so the H-1B visas are awarded through a lottery system. To make sure you are ready and your application has been properly prepared and reviewed, you should prepare well ahead of the April 1st deadline. This blog post describes the requirements of an H-1B visa.

For more information on the H-1B visa, please click here.

What Are the H-1B Visa Requirements

Generally, to qualify for the visa, the prospective employee must have a bachelor’s degree or the equivalent on a bachelor’s degree, the position that the beneficiary was hired for must be the type of job that normally requires a degree in a related field, and the beneficiary must be paid the prevailing wage (the going rate as set by the Department of Labor) for the job in the form of a salary or wage.

Bachelor’s Degree or Equivalent

The H-1B visa permits the temporary employment of foreign workers for a “specialty occupation.” The regulations defined a specialty occupation as requiring theoretical and practically application of a body of highly specialized knowledge in a field of work. Practically speaking, the regulations require that the beneficiary has a U.S. Bachelor’s degree or its equivalent as a minimum, and that the job is of the type that typically requires a degree. The U.S. Bachelor’s degree or its equivalent must relate to the beneficiary’s intended employment. In order to determine if the job requires a degree, a USCIS examiner will refer to the Occupational Outlook Handbook, which contains a comprehensive list of certain jobs that require a degree, to help make this determination.  If the handbook does not indicate that a degree is normally required for the position, the applicant may submit additional evidence to demonstrate that the position normally requires such a degree, such as:

  • Copies of previous job postings that demonstrate the minimum requirements for the position and that shows the applicant’s company normally requires a degree for the position.
  • A detailed description of the petitioner’s business, products or services and the duties of the position, along with written opinions from experts confirming that the position is so specialized or complex it can only be performed by some with a degree.
  • Letters or affidavits from other employers reflecting the minimum requirements of the position and demonstrating that the degree requirement is common to the industry.

While a Bachelor’s degree is required for an H-1B visa, the regulations permit the issuance of the visa to beneficiaries who can demonstrate the “equivalent” of a degree. A beneficiary may qualify for the visa of the petitioner can demonstrate that the beneficiary holds an unrestricted state license, registration or certification which authorizes the petitioner to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment, or the petitioner has the education or specialized training required for the position through relevant work experience or education. In general, 3 years of work experience or training in the field is considered as equivalent of 1 year in college.

The Prevailing Wage Requirement

The H-1B visa requires that the beneficiary be paid at least the actual or prevailing wage for your occupation, whichever is higher. The reason that government has implemented this requirement is to make sure that companies cannot hire foreign workers at salaries that are less than what a U.S. worker would expect.  USCIS determines the prevailing wage based on the position in which the beneficiary will be employed and where the job is located. For example, the prevailing wage for a marketing specialist in New York may be $70,000 and $60,000 in another city in the U.S..

The Application Process

The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), along with the Form I-129, Petition for a Nonimmigrant Worker.  After the visa is approved, the beneficiary can apply for a visa at the consulate by showing the approved I-797 notice.  If the applicant is in the U.S., the application can be processed as a change of status and premium processing is available for this visa.

To find out more about our immigration and business services, contact Scott Legal, P.C.

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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at info@legalservicesincorporated.com.


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