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

Foreign nationals who have been offered a temporary U.S. job in a "specialty occupation" can qualify for H-1B visas.

By , Attorney · Capital University Law School

The H-1B visa category is for noncitizens who will either 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. (See 8 C.F.R. § 214.2.)

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. This cap includes 65,000 "regular" H-1B slots and 20,000 slots for people with master's degrees or higher. (Some jobs are also "cap-exempt.")

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). (But consulting companies may, in some cases, also hire H-1B workers and place them with different end clients.)
  • 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 unmarried children under age 21) are eligible for H-4 visas to accompany the H-1B worker. Certain H-4 spouses can apply for work authorization. Children who turn 21 during their H-4 stay in the U.S. will, however, lose their immigration status and should, if they wish to stay, take steps to find another status, such as F-1 student.
  • 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 decides to leave. 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.

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 one typically needs 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 or up to date with market realities, 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 marketing 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 specific degree.

H-1B 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 in 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 might 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 Rules 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. The state licensing agency might 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. In that case, clearly state in the petition that a license is not required.

H-1B Cap: Only 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 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 lottery applications during the online registration period for the fiscal year when the employee is set to begin work.

The H-1B application process has two phases:

  1. submitting an online registration into a lottery, and
  2. if selected, submitting an H-1B petition to USCIS.

In recent years the initial online registration period has run in early March, with USCIS making its lottery selections by March 31. If selected, employers have at least 90 days from April 1 to file their H-1B petitions.

Based upon the very high demand for H-1B visas in recent years, which has resulted in about 25% lottery selection odds, the pre-filing lottery is a welcome change. In the past, USCIS conducted a random lottery to allocate visas only after full H-1B petitions were filed. The lottery system involves a simple electronic registration process. Only if selected can employers submit H-1B petitions. Even though the actual petition submission happens after the lottery selection, it's essential to ensure that the job and individual both qualify for the H-1B visa. There is no point in entering the lottery only to later have USCIS deny the petition because the job or individual did not meet the requirements. Therefore, it's prudent to be ready to file the complete, qualifying petition as soon as USCIS announces registration selections.

If USCIS does not receive enough H-1B petitions to allocate the 85,000 visas, it conducts supplemental lottery rounds from among the lottery entries submitted in March. Employers do not need to ask to be included in any subsequent selections. Rather, an entry in March will remain eligible until selected or the end of that fiscal year's selections, which could happen as late as December or January after the first round in March.

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. Examples include teaching hospitals, which have affiliations with universities, and primary and secondary schools, which often have affiliation agreements with local universities for student teaching programs. 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

Under the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), an H-1B worker may change employers once the new employer's petition is pending with USCIS). (A change in employers always requires filing a new visa petition). This convenient option is called "H-1B portability." It applies to noncitizens who previously had an H-1B visa or were in the U.S. in H-1B status. There are three basic requirements to taking advantage of this option:

  1. The H-1B worker entered the U.S. lawfully.
  2. The new employer filed a "non-frivolous" H-1B petition while the prospective employee's current H-1B status is valid.
  3. The H-1B worker has not worked without authorization since the most recent, lawful entry.

For people in the United States, USCIS has interpreted H-1B portability as applicable only to those who currently have H-1B status, though the statute itself isn't clear on this point. USCIS takes the position that portability does not apply to someone who is now in H-4 status but who previously had H-1B status, for example.

In this latter situation, the new employer first would need to obtain approval of its petition before the person would be authorized to start working. An example of how this could happen is if a husband and wife both are working in the U.S. in H-1B status. If the husband loses his job, he can change to H-4 status as his wife's dependent. If another employer then wants to hire him, USCIS takes the position that AC21 portability does not allow him a quick path through the process. Rather, this new employer needs to wait for USCIS to approve the H-1B petition before the husband can start working.

Another scenario is for someone who is outside the United States. If they still have a valid H-1B visa from a current or prior H-1B employer, they can use that visa along with the Receipt Notice (USCIS Form I-797) for the new employer's H-1B petition in order to enter the U.S. and start working.

Employers taking advantage of H-1B portability face a quandary when completing the I-9 form (Employment Eligibility Verification Form), which must be filled out for every new employee, to record the employee's work authorization documents. In the normal H-1B situation, the employee's current I-94 Departure Record, endorsed for H-1B status with that employer, and an identification document would meet the I-9 requirement. The I-9 Handbook (Form M-274) instructs employers to use the employee's current I-94 Departure Record and foreign passport as a "List A" document and to write "AC21" and the date the new H-1B employer submitted its petition in the margin next to Section 2 of the I-9 form. If you keep photocopies of documents used in preparing all of your I-9 forms as part of your policy, it is a good idea to attach a copy of the receipt notice (USCIS Form I-797) to confirm that the H-1B petition is pending.

Finally, the Immigration and Nationality Act provides that the employer must start paying the H-1B employee's wages within 30 days of when the employee enters the U.S. under the H-1B visa. If the employee already is in the United States, the employer must start paying the wages within 60 days of when the H-1B petition and worker's H-1B status becomes effective. Therefore, in the H-1B portability context for someone in the U.S., you need to be prepared to bring the employee on board within 60 days of when the H-1B petition goes into effect.

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 take various steps to sponsor you. In some entrepreneurial cases, it might be possible to base your H-1B application on self-employment through a company you form and own, but this can be difficult. Demonstrating that sufficient time will be devoted to the specialty occupation, rather than to administrative duties, and that there is enough work to keep you busy, is a particular challenge.

In either case, the employer prepares and files the petition. Larger organizations might 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 who has 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 in a timely fashion.

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