H-1B Visa to the U.S.: Who Qualifies?

Each year, the United States makes 85,000 H-1B temporary visas available. This visa is primarily for workers in occupations requiring highly specialized knowledge. It's also for distinguished fashion models.

The H-1B visa is most often used by workers in computer and other high-tech industries. However, those aren't the only careers that qualify. The visa can also be used by people in other specialized fields, such as accountants, attorneys, librarians, dietitians, and various scientific or medical workers.

(Note: The law authorizing this visa is found in either the U.S. Immigration and Nationality Act (I.N.A.) at section 101(a)(15)(H) or in Title 8 of the U.S. Code, at 8 U.S.C. section 1101(a) (15)(H).)

Key Features of the H-1B Visa

Here are some of the main pluses, minuses, and other things to know about the H-1B visa:

• You can work legally in the U.S. for the employer who sponsors you for the H-1B visa, up to a maximum of six years.
• You can apply for visas for your spouse and minor children to accompany you to the United States. However, they may not work here, unless they separately qualify for their own work visa(s).
• Until your H-1B status expires, you'll be allowed to travel in and out of the United States, if you like.
• If your employer terminates you before your authorized H-1B stay has expired, it's up to the employer to pay for your return trip to your home country. This is true even if you were fired through your own fault. But if you quit the job, you have to pay your own way home.

Limited Numbers of H-1B Visas

There are never enough H-1B visas for all the people who want them, which creates some complications in the application process. As soon as the limit is reached within a given year, U.S. Citizenship and Immigration Services (USCIS) will stop approving H-1B petitions (the application filed by your employer to start the visa application process) until the start of the next fiscal year, October 1.

Also, not all of the 85,000 total are available to everyone. Within that number, 20,000 are set aside for workers with a master's degree (at least) from a U.S. academic institution. What's more, a certain number are reserved for workers from Chile and Singapore, both of which have signed trade agreements with the U.S. allocating H-1Bs to their citizens.

But there's one bit of good news: The numerical limits won't apply to you if you'll be working for either an institution of higher education, a nonprofit affiliated with such an institution, a nonprofit research organization, or a government research organization.

Details of H-1B Visa Eligibility Rules

To qualify for an H-1B visa, you must first have a job offer from a U.S. employer. The duties of your job must be performed within the United States. In addition, the H-1B visa requirements include these mandates:

• You will be performing services in a specialty occupation, and you have a college degree or its equivalent in work experience; or else, you will be performing services as a distinguished fashion model.
• Your U.S. employer is offering to pay you at least the amount of the prevailing wage being paid to other workers in the same geographic area for the same type of job (or the amount it is paying to actual workers at the same workplace -- whichever is higher).
• You have the correct background for the job.
• Your employer has filed what's called a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL).

The job itself must also meet one or more of the following criteria:

• It must require, as a minimum, a bachelor's degree or a higher degree (or the equivalent in work experience). Note: the employer can't just decide arbitrarily to demand this high degree of education for the job -- the degree requirement must be commonly found among people working in parallel positions within similar organizations in the same industry, or else the job duties must be so inherently complex that only by a person with a degree can realistically perform them.
• The employer must normally require a degree or its equivalent for the position you've been offered.
• The nature of the specific job duties must be so specialized and complex that the knowledge required to perform them is usually associated with a bachelor's degree or higher.

Not all academic degrees are created equal. If you've got a bachelor's degree in a liberal arts or general business subject area, you may have trouble getting an H-1B visa, because USCIS tends to view these as insufficiently specialized. To get an H-1B visa, your academic and professional credentials must match the job you've been offered.

Also note: If people need a license to practice your particular occupation in the U.S. state where you will be working, then, on top of your educational credentials, you must also have that license.

Fashion models don't need to meet the specialty occupation requirements. Instead, they must show that they are nationally or internationally recognized for their achievements, and will be employed in a position requiring a model of distinguished merit and ability. The models must be renowned, leading, or well known. For more information on H-1B visas for fashion models, see the USCIS regulations at 8 C.F.R. section 214.2(h)(4)(vii).

You're Interested in an H-1B Visa: What's Next?

If you think you might qualify for an H-1B visa, your most important task is to find a U.S. employer who wants to hire you and has the patience to wait until you've gotten through the visa process. That employer will most likely need to hire a lawyer to help. Larger employers often have their own lawyers on staff. Because every year there are more people trying to get an H-1B visa than there are visas available, a lawyer can help make sure that your application is done right the first time, and gets filed as soon as possible (hopefully before the visas run out for the year).

To educate yourself about what kinds of jobs to look for and what to expect during the application process, see U.S. Immigration Made Easy, by Ilona Bray (Nolo). Or, consult an immigration attorney for a personal analysis. Nolo's Lawyer Directory can help you find an expert attorney who fits your needs and has taken the Nolo pledge promising respectful service. Look in particular for an attorney with expertise in business immigration law (even immigration law has subspecialties within it).