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

Find out whether an H-1B visa to the United States is a good match for your or your employee's situation.

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The H-1B visa category is for noncitizens who will work in the United States in a "specialty occupation," perform services under a Department of Defense-administered project, or work as a fashion model of distinguished merit and ability.

The "specialty occupation" category is the one that applies to most employers and individuals. It refers to jobs for which the usual requirement is a U.S. bachelor's degree or the equivalent in a specific field and for which the foreign national employee has a relevant degree or the equivalent. Examples of jobs that qualify include accountants, engineers, information technology professionals, pharmacists, scientists, and teachers.

There is a cap of 85,000 visas for first-time applicants each federal fiscal year, which runs October 1 to September 30.

Key Features of the H-1B Visa

Here are the basics on the H-1B visa:

  • The H-1B visa can be approved only based on a specific employer, offering a specific job in a specific location. A change in any one of these often requires the sponsoring (or new) employer to file a petition with U.S. Citizenship and Immigration Services (USCIS).
  • The employer must pay the H-1B employee the higher of the actual wage or prevailing wage, as described in, "H-1B Employers: What Wage Must You Pay?"
  • 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. The six-year limit does not apply if the employee works less than six months each year in the United States or has reached certain milestones in the employment-based green card process.
  • Dependent family members (spouses and children under age 21) are eligible for H-4 visas to accompany the H-1B worker. H-4 visas do not allow for employment in the U.S. as of late-2014 -- though the Department of Homeland Security (DHS) had proposed to change this.
  • 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.

What Is a "Specialty Occupation?"

There are two basic requirements to satisfy the specialty occupation standard. The first is that the employer's job must require a specific bachelor's degree or the equivalent in combined education and experience. The second is that the foreign national employee must have a relevant degree or the equivalent. While this sounds simple, it sometimes can become quite complex.

The H-1B Job Must Require a Specific Bachelor's Degree

The U.S. government’s H-1B regulations provide four ways an employer can demonstrate that its job requires a bachelor's degree:

  1. A bachelor's degree normally is the entry-level requirement for the job.
  2. A bachelor's degree is common in the industry among comparable employers.
  3. The employer normally requires a degree for the job, or
  4. The job duties "are so specialized and complex" that you typically need to have a bachelor's degree to perform them.

For jobs such as accounting, engineering, and many information technology professions, it's clear that the applicant needs a specific bachelor's degree to get the job. For other jobs, it's less clear. For example, marketing and sales jobs often present challenges in the H-1B visa category, because employers typically accept a wide range of degrees. For example, Sales Representatives might have degrees in business, marketing, psychology, history, communications, political science or other fields. This makes it difficult to demonstrate that a specific bachelor's degree is required.

To evaluate the first criteria above, USCIS often looks to the Department of Labor's Occupational Outlook Handbook (OOH), which discusses the typical educational requirements for many different jobs. While the OOH is not always conclusive, USCIS considers it very persuasive.

For the second criteria, a good approach, if you’re the employer, is to look at job postings for comparable positions at organizations similar to yours to see if other employers require a specific bachelor's degree. When searching for jobs at other organizations, be sure it's in the same industry. For example, if your organization is a power company, then you want to look for the same job at other power companies.

Under the third criteria, you need to look at the educational qualifications of other people your company has hired for the same job to determine whether you've been consistent in requiring a specific degree. If you have ten Marketing Assistants, for example, and nine of them had marketing degrees when you hired them, you likely can show that the job requires a degree.

Finally, the fourth way to demonstrate that the job requires a specific bachelor's degree is somewhat nuanced and likely requires some type of supporting evidence, such as a letter from a professor, to justify why the job duties are so complex that you need to have a degree.

The Employee Must Have a Relevant Bachelor's Degree or the Equivalent

After demonstrating that the job being offered requires a specific bachelor's degree, the employer must make sure that the foreign national being sponsored for the H-1B visa has a relevant bachelor's from a college or university in the United States, the foreign equivalent of a U.S. bachelor's degree or the equivalent combined education and experience.

For foreign degrees, it's often a good idea to have a professional credentials evaluation firm review the diploma and transcript and issue a formal report on the U.S. equivalency. Be aware that some countries offer three-year bachelor degrees, which will not qualify for an H-1B visa. If the prospective H-1B worker has relevant experience, however, you may be able to obtain an evaluation of the educational equivalency.

USCIS uses a three-for-one formula, whereby three years of progressive employment is the equivalent of one year of university studies. "Progressive" means that the employment became more responsible or complex over time. It therefore could be possible for someone with 12 years of progressive employment to qualify for an H-1B visa.

Additional Requirements for H-1B Jobs That Require a License

There are some jobs, such as professional engineers, pharmacists, physicians, and public school teachers that legally require a state license to perform them. In such cases, the employer will need to submit a copy of the prospective employee’s license with the H-1B petition. In some cases, the state licensing agency will not grant the license until the employee is present in the U.S. in H-1B status.

Recognizing the circular nature of the problem, USCIS will approve the H-1B petition for one year to allow the employee to obtain the occupational license. In most cases, one year is enough time to get the license and submit a petition to extend the employee's H-1B status.

Employers should be clear in the H-1B petition about whether a license is necessary for the job. For example, an engineer or accountant who works in-house for a company may not need a license.

The H-1B Cap – 85,000 New Visas Each Year

Each federal fiscal year, a base amount of 65,000 new H-1B visas are made available. This amount is reduced by 6,800 for applicants from Chile and Singapore, under free trade agreements. However, the amount is, in effect, increased by a rule stating that the first 20,000 visa petitions each year filed for people with U.S. advanced degrees (master, professional, doctorate) are exempt from the 65,000 base amount. This in effect brings the annual quota up to 85,000.

The federal fiscal year runs from October 1 of the current year to September 30 of the following year. Employers may file H-1B petitions up to six months in advance of when the employee is to start working. This makes April 1 an especially important filing date for years when employers are sponsoring an H-1B worker for the next allotment of H-1B visas.

Indeed, in recent years, the entire H-1B quota has been exhausted before the end of the fiscal year. In 2008 and 2013, employers filed more than 85,000 petitions on April 1. USCIS then conducted a random lottery to allocate the visas. The current lottery system takes petitions filed through the first five business days of April. As a result, it's important to be ready to file your petition on April 1 if you want to sponsor an H-1B worker.

The H-1B cap applies to workers obtaining H-1B status or an H-1B visa for the first time or to those who previously were in the U.S. in H-1B status for six years, spent one year abroad and are now eligible for another six-year period. The cap does not apply to H-1B workers who will work for or at a university or affiliated nonprofit or research institute. Please be aware, however, that someone currently working at an exempt employer, such as a university, who then moves to a cap-subject employer (most private sector organizations), becomes subject to the cap and will require one of the 85,000 visas.

H-1B Portability – Changing Employers

An H-1B worker may, under certain circumstances, change employers within the United States. See “H-1B Portability – How Workers Can Change Employers” for details.

My Job Requires a Degree, and I Have a Relevant Degree. What Happens Next?

If you think you meet the requirements for an H-1B visa, your employer will need to sponsor you. In some entrepreneurial cases, it may be possible to base your H-1B application on self-employment through a company you form and own, but it can be difficult. The potential difficulties with a self-employment/entrepreneur petition can be demonstrating that sufficient time will be devoted to the specialty occupation, rather than mostly administrative duties, and that there is enough work to keep you busy.

In either case, the employer prepares and files the petition. Larger organizations may have an immigration lawyer on staff or available to assist. Smaller organizations with little or no immigration history likely will want to seek an immigration lawyer with employment immigration experience. The process can be complex and unforgiving. Having an experienced immigration lawyer will help to ensure the petition is filed correctly and timely.

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