H-1B Specialty Occupation
The H-1B visa is one of the most commonly used visas for companies looking to hire foreign talent. The H-1B is a dual- intent, non-immigrant visa, that requires a candidate to be working in a specialized knowledge position, that requires a Bachelor’s degree or equivalent or higher in a specific field.
H-1B eligibility
To qualify for an H-1B a candidate must be able to demonstrate the following:
- That they will work in a position that typically requires a Bachelor’s degree, or equivalent, or higher, in a field which is directly relevant to the position being offered; and
- They have completed a relevant U.S. bachelor’s degree or higher from an accredited University.
The completion of a U.S. Bachelor’s degree or higher equivalency can be demonstrated through foreign education alone or a combination of education, training or progressively responsible experience in the specialty.
A candidate with no formal education can still demonstrate the equivalency of a Bachelor’s degree if he/she has at least 12 years of progressively responsible experience (3 years of experience is equivalent to 1 year of education).
Applying for your first H-1B
In order to obtain an H-1B visa for the first time, a candidate has to go through what is commonly referred to as the “H-1B lottery”. This is also known as an H-1B cap case. This lottery process is run every April and requires a candidate’s Employer to submit a complete I-129 petition to USCIS for selection. For FY2021 USCIS plans to implement a pre-registration process.
There are a total of 85,000 visas available each fiscal year, 65,000 visas available for those with a Bachelor’s degree and an additional 20,000 for those with a Master’s degree. However, typically the number of applicants submitting applications through the H-1B lottery is close to 200,000. Therefore, getting selected for an H-1B is the first hurdle to obtaining a visa.
Candidates filing for an H-1B petition through one of the following employers are not subject to the aforementioned numerical caps and can apply during any time of the year:
- An institution of higher education;
- A non-profit entity which is related to or affiliated with an institution of higher education;
- A non-profit research organization; or
- A government research organization.
Time permitted on an H-1B visa
Typically, an H-1B candidate can apply for a 3- year visa, with the possibility of a further 3- year extension. However, there are certain circumstances that permit a candidate to remain on H-1B beyond the 6-year limit. For further details of this please refer to the article titled, “Securing H-1B approval beyond the 6-year limit,” written by our Senior Immigration Attorney, Chris Prescott.
https://www.immigrationnews.online/home/securing-h-1b-approval-beyond-the-6-year-limit
Dependents of an H-1B
H-4 status is available to spouses and children under the age of 21. Certain spouses on H-4 status may be eligible to file for work authorization.
Changing Employers
An individual typically needs to only go through the H-1B lottery one time. Once selected and approved an employee can switch employers by having the new Employer file a new H-1B petition with USCIS, before commencing work with the new Employer. This is called an H-1B transfer. Under the law, a candidate is permitted to work with another H-1B employer once the new petition has been received by USCIS.
Employer’s responsibility to pay the required wage
Before submitting the I-129 petition to USCIS an Employer must apply for a Labor Condition Application (“LCA”) from the Department of Labor (“DOL”). By signing this LCA the Employer is attesting to pay the Beneficiary either the prevailing wage or the wage paid to similarly qualified workers. Failure to pay this wage could result in an Employee filing a wage complaint against the Employer.
Paying the costs of the H-1B petition
The Employer is required to pay the costs of filing the petition and this includes both the Attorney fees and filing fees. The only fee which the Employee is permitted to pay is the premium processing fee and technically this can only be paid by the employee if the request to process in premium comes from the employee directly. It is unlawful for H-1B employers to try and recover the costs of filing the H-1B petition from the employee.
However, the fees for the H-4 application do not have to be paid by the Employer.
Recent challenges to the H-1B program
In the last few years, the Trump administration has made it much more difficult to obtain an H-1B approval. In particular, USCIS has specifically targeted IT Consulting companies. These companies have seen a significant increase in the number of Requests for Further Evidence (“RFE”) and Denials.
USCIS regularly challenges IT Consulting companies to demonstrate the existence of a valid Employer-Employee relationship, whether the position qualifies as a specialty occupation, and whether there is a specific and non-speculative qualifying work assignment for the entire time requested on the petition.
By requiring that an Employer demonstrate 3- years’ worth of work at the time of filing the petition, USCIS has created two evidential burdens, one for IT Consulting companies and another for every other type of employer. Because of this, Patel Law Group is now starting to challenge these unlawful decisions by filing Federal lawsuits against USCIS. For further details of this please e-mail cprescott@patellegal.com.
Obtaining H-1B approval is now more difficult than ever. It is therefore essential for Employers and their employees to work with an experienced Immigration Attorney that has experience of dealing with all of the above issues.
For more information on our services please contact our Senior Immigration Attorney, Chris Prescott at cprescott@patellegal.com and Senior Paralegal Tiffany Heitman at Theitman@patellegal.com.