The H-1B visa category is one of the most sought-after visas for foreign professionals who wish to work in the United States.
It provides an opportunity for noncitizens to work in “specialty occupations,” contribute their skills to Department of Defense projects, or showcase their distinguished merit and ability as fashion models.
However, qualifying for an H-1B visa involves meeting specific criteria and navigating a complex application process.
In this blog, we will delve deeper into the qualifications for an H-1B visa, exploring the key features of the visa, the requirements for a “specialty occupation,” the necessary educational qualifications, additional rules for jobs requiring a license, and the H-1B cap.
Key Features of the H-1B Visa
Before diving into the eligibility requirements, it’s important to understand the key features of the H-1B visa. The H-1B visa is employer-specific, job-specific, and location-specific.
This means that an individual can only work for the specific employer who sponsors their visa, in the specific job mentioned in the petition, and at the specific location designated in the application. If any changes occur in these aspects, such as switching employers or job roles, a new petition must be filed with the U.S. Citizenship and Immigration Services (USCIS).
It’s also worth noting that consulting companies may hire H-1B workers and place them with different end clients under certain circumstances. Additionally, the employer must pay the H-1B employee the higher of the actual wage or the prevailing wage, as determined by the Department of Labor.
What Is a “Specialty Occupation?
One of the key requirements for the H-1B visa is that the job must be a “specialty occupation.” To meet this standard, two conditions must be satisfied: the employer’s job must require a specific bachelor’s degree or its equivalent in education and experience, and the foreign national employee must possess a relevant degree or its equivalent. While this may sound straightforward, it can sometimes become complex in practice.
Criteria for H-1B Visa Qualification
H-1B Job Must Require a Specific Bachelor’s Degree
The U.S. government’s H-1B regulations outline four ways for an employer to demonstrate that a job requires a bachelor’s degree:
- A bachelor’s degree is typically the minimum requirement for the job.
- A bachelor’s degree is commonly required in the industry among comparable employers.
- The employer consistently requires a bachelor’s degree for the job.
- The job duties are so specialized and complex that a bachelor’s degree is necessary to perform them.
Certain professions, such as accounting, engineering, and information technology, have clear-cut requirements where a specific bachelor’s degree is necessary. However, other fields like marketing and sales may present challenges, as employers often accept a wide range of degrees.
For example, sales representatives may hold degrees in business, marketing, psychology, history, communications, or political science. In such cases, it becomes difficult to demonstrate that a specific bachelor’s degree is required.
To evaluate the first criterion, USCIS often refers to the Department of Labor’s Occupational Outlook Handbook (OOH), which provides information on the educational requirements for various occupations. While the OOH may not always reflect current market realities, USCIS considers it to be highly persuasive.
Under the second criterion, employers can examine job postings for similar positions in organizations within the same industry to determine if other employers require a specific bachelor’s degree. This research helps establish industry norms and standards.
The third criterion involves reviewing the educational qualifications of other individuals the company has hired for the same job. Consistency in requiring a specific degree can be demonstrated if a majority of previous hires possessed that degree. For instance, if a company has ten Marketing Assistants and nine of them hold marketing degrees, it strengthens the argument that a marketing degree is indeed required for the job.
The fourth criterion requires a more nuanced approach. Employers must provide supporting evidence, such as a letter from a professor or expert in the field, to justify why the job duties are specialized and complex, necessitating a specific degree.
H-1B Employee Must Have a Relevant Bachelor’s Degree or the Equivalent
Once the employer establishes that the job requires a specific bachelor’s degree, they must ensure that the foreign national being sponsored for the H-1B visa possesses a relevant bachelor’s degree from a U.S. college or university, the equivalent of a U.S. bachelor’s degree from a foreign educational institution, or a combination of education and experience that is equivalent.
When evaluating foreign degrees, it is often advisable to seek the assistance of a professional credential evaluation firm. These firms can review the foreign diploma and transcript and issue a formal report that determines the U.S. equivalency of the degree. It’s important to note that some countries offer three-year bachelor’s degrees, which do not meet the H-1B visa requirements. However, if the prospective H-1B worker has relevant work experience, it may be possible to obtain an evaluation that equates their experience with education.
USCIS applies a three-for-one formula, where three years of progressive employment is considered equivalent to one year of university studies. To meet this criterion, the employee must have become more responsible or complex over time. For instance, if an individual has 12 years of progressive employment, they may qualify for an H-1B visa.
Additional Rules for H-1B Jobs Requiring a License
Certain occupations, such as professional engineers, pharmacists, physicians, and public school teachers, require a state license to practice. In such cases, the employer must submit a copy of the prospective employee’s license along with the H-1B petition. It’s worth noting that the state licensing agency may not grant the license until the employee is physically present in the U.S. under H-1B status.
Recognizing the circular nature of this requirement, USCIS approves H-1B petitions for one year, allowing the employee to obtain the necessary occupational license. In most cases, one year is sufficient to acquire the license and submit a petition to extend the H-1B status.
It is crucial for employers to clearly state in the H-1B petition whether a license is necessary for the job. For example, an engineer or accountant working in-house for a company may not require a license. In such instances, explicitly stating in the petition that a license is not mandatory helps avoid unnecessary complications.
H-1B Cap: Only 85,000 New Visas Each Year:
The H-1B visa program operates within an annual cap, which limits the number of new visas that can be issued each year. The base cap is set at 65,000 visas, but this number is reduced by 6,800 for applicants from Chile and Singapore under free trade agreements. However, there is an additional provision that exempts the first 20,000 petitions filed each year for individuals with U.S. advanced degrees (master’s, professional, or doctoral degrees) from the base cap. This provision effectively raises the annual quota to 85,000 visas.
The federal fiscal year runs from October 1 of the current year to September 30 of the following year. Employers can 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 consists of two phases. The first phase involves submitting an online registration to the lottery. If selected, the employer can proceed to the second phase, which entails submitting an H-1B petition with all the necessary supporting documentation. It’s important to note that the demand for H-1B visas typically exceeds the annual cap, leading to a random selection process known as the H-1B lottery.
In the lottery, USCIS randomly selects a sufficient number of registrations to meet the H-1B quota. The remaining registrations are placed on a waitlist. In recent years, the number of registrations has far exceeded the available visas, resulting in a low probability of selection.
If an employer’s registration is selected in the lottery, they have a limited time window to submit the complete H-1B petition, including all supporting documents. Failure to meet the deadline may result in the loss of the opportunity to secure an H-1B visa for that fiscal year.
It’s important for employers and prospective employees to stay informed about the annual H-1B cap, as well as any changes in the application process or lottery system. Consulting with an experienced immigration attorney can help navigate the complexities and increase the chances of a successful H-1B petition.
Conclusion
The H-1B visa offers a valuable opportunity for foreign professionals to work in the United States. However, qualifying for an H-1B visa requires meeting specific criteria and navigating a complex application process. Understanding the requirements for a “specialty occupation,” educational qualifications, rules for jobs requiring a license, and the H-1B cap is crucial for employers and prospective employees alike.
Employers must demonstrate that the job meets the criteria for a specialty occupation and that the prospective employee possesses a relevant bachelor’s degree or its equivalent. Additional rules apply for occupations requiring a license. Furthermore, the H-1B visa program operates within an annual cap, with a limited number of visas available each year. The lottery system further adds to the complexity, as registrations are randomly selected for further processing.
Staying informed about the latest updates and seeking professional guidance can significantly increase the chances of a successful H-1B petition. The H-1B visa remains an attractive option for individuals seeking to contribute their skills and expertise in the United States, and with thorough preparation, it is possible to navigate the process successfully.
Disclaimer
The information provided in this blog is for general informational purposes only and should not be construed as legal advice. The requirements and processes for H-1B visas are subject to change. It is advisable to consult with an immigration attorney for personalized guidance based on your specific circumstances.