There aren’t many visas that can match the popularity of the H-1B. With it’s portability, dual intent status, and relatively low requirements, it is easy to see why tens of thousands of immigrants apply for this visa every year. Whether you are the beneficiary of the visa or an employer, it is important to know what the H-1B requirements are before getting started on the filing process to avoid any unwanted mistakes or delays.
H-1B Visa Overview
The H-1B visa is a nonimmigrant visa (temporary visa) that is designed for those with specialty occupations to work in the U.S. If granted, you will be able to work for an initial period of three years with the opportunity to get an extension for three more years for a six-year maximum.
If you meet the H-1B requirements, then your employer (not you) must file an I-129H1 petition with the USCIS on April 1st of the year that you wish to start working. Due to the overwhelming number of petitioners that apply each year, your petition will be entered into an annual lottery in which only 85,000 petitions will be randomly selected in two caps.
The first cap has 20,000 slots available for those with advanced degrees. Any petitions for those with advanced degrees that were not selected in this master’s cap will be resubmitted to the regular cap of 65,000, giving them a second shot at being selected. The only way to avoid this cap is to have a job that is for an institute of higher education, a non-profit organization that is associated with an institute of higher education, or a governmental research organization. Also, if you have already been counted against the cap, all subsequent petitions will be considered cap-exempt.
If your petition is selected, then it will be processed. If it is then approved, then you will be able to start working on October 1st of the year that you petitioned. This all goes into the overall H-1B requirements because, even if you meet all the qualifications, your petition must still be chosen in the lottery.
It is also important to remember that each H-1B visa applicant also needs to have their employer file for a Labor Condition Application (LCA) on their behalf. This is similar to the PERM Labor Certification needed for employment-based green cards, but it is a bit less involved.
To obtain an LCA, the employer needs to make four attestations that serve as requirements:
- That the prevailing wage has been determined for your position in your geographic area and the employer will pay you this wage as a minimum for your position.
- That your employment will not be detrimental to the workers currently working for the employer.
- That no strike is currently taking place. Essentially, the employer must show that you will not be replacing striking workers.
- That all of the workers currently employed with the employer have been notified of the intention to hire you.
So What H-1B Requirements Must I Meet?
Here is a quick rundown of the H-1B requirements:
- You must have a minimum educational level of a bachelor’s degree
- You must have a valid job offer from a U.S. employer
- That job must be for a specialty position that requires the use of your degree
While these may seem simple enough, let’s break them down so that the ambiguity is dispelled. Remember, the USCIS rarely gives refunds and the regulations are usually very strict, especially with a visa that is in such high demand.
Firstly, you must have at least a bachelor’s degree that is relevant to your position. If you have 12 or more years of experience in a related field, you may be able to meet this H-1B requirement without a bachelor’s degree. However, it is far from guaranteed. Speak with your immigration attorney to determine if your experience can substitute for a degree.
Even though this H-1B requirement seems self-explanatory, issues arise when the relationship between employee and employer is called into question. This can create problems, especially when the beneficiary is self-employed. While it is possible to start a business on an H-1B visa, there are special steps that must be taken to meet this requirement.
Other than that, you need to make sure that your employer has the ability to control your job duties, your wages, and your employment status. As a contractor or agent, you need to make it clear in the petition how your employer-employee relationship meets this H-B requirement.
For the position to qualify as a “Specialty Occupation,” the position is obligated to fulfill at least one of the listed requirements:
- The position must require a minimum of a bachelor’s degree or its foreign equivalent to enter.
- The position is so complex or specialized that it only can accept professionals who have a bachelor’s degree or higher. An educational degree is a typical requirement for the position within the industry.
- The employer generally obligates candidates to have an educational degree or its foreign equivalent to operate in the position.
Be aware that there is a cap on the number of H-1B visas allotted. Learn more about the H-1B Visa Cap.
For the applicant to qualify for a “specialty occupation”, the applicant must satisfy one of the listed categories:
- Hold a U.S. bachelors or higher degree from an accredited university that can fulfill the requirements of the specialty occupation.
- Obtain a foreign equivalent to a U.S. bachelor’s degree or higher that can satisfy the requirements of the specialty occupation.
- Hold an unrestricted state license, registration, or certification that allows the applicant to have no limitations when engaging in the specialty occupation.
- The applicant must have received training, education, or work experience that is required for the completion of the degree. The applicant is mandated to have been acknowledged in the area of expertise. The applicant is obligated to have participated in positions essential to the specialty occupation.
- The applicant’s potential employer is required to have an authorized ETA-9035 form along with an approved Labor Certification Application, I-129 form, and a Petition for a Non-immigrant Worker.
H-1B to Green Card Requirements
Fortunately, the H-1B visa is a dual intent visa, meaning that you can seek permanent resident (green card) status. If this is your goal, then you will need to approach either your current H-1B employer or a different U.S. employer to have them sponsor you for your green card.
That employer will then need to get a PERM Labor Certification for you provided that you are applying for an EB-2 or EB-3 green card. This means that your sponsoring employer must advertise for your petition within the company, in the local newspaper, and also in three other mediums listed in the PERM advertising requirements.
Once you have your PERM, your employer can then file an I-140 petition for you with the USCIS. To have this approved, you will need to meet the requirements for the green card that you are choosing to pursue. Ideally, you would choose the green card that has criteria that most closely resemble the H-1B requirements you have already met as an H-1B holder. With this in mind, the EB-3 visa may be your best bet. However, your immigration attorney can better help you navigate this transition.
How Our Immigration Lawyers Can Help
Outside of having a master’s degree, there is no way to increase your chances of being selected in the lottery. However, you can drastically increase your petition’s chances of being approved by the USCIS. Avoiding simple mistakes, common pitfalls, and unnecessary delays can save you both time and money in your immigration case.
Here at SGM Law Group, we have helped countless people and companies work through the H-1B process. From making sure that all of the H-1B requirements are met to addressing any obstacles such as Requests for Evidence, our expert team of attorneys stands ready to handle every aspect of your case.
To get in touch with one of our lawyers, fill out this contact form today and see if you qualify for a free consultation.