The H-1B visa is one of the most popular employment-basedvisa options, and filing season is just around the corner! But what kind of jobs does the H-1B visacover and how do employers go about obtaining this status for an employee?
The H-1B visa category was first created byCongress in 1990. It allows for thetemporary employment of foreign workers within certain “specialtyoccupations”. These are defined asoccupations that require the “theoretical and practical application of a bodyof highly specialized knowledge”, and the attainment of a bachelor’s degree orhigher as the minimum entry requirement in the U.S. However, in some cases, an employee may beable to use work experience to overcome the degree requirement.
It must also be shown that the potentialemployee holds any licenses or other certification required by the relevantprofession, and that the employer is willing to pay at least the prevailing wagefor that particular work location and occupation.
There are many professions that readily meetthis definition, including teachers, lawyers, engineers, and doctors. However, there are many other positions whosetitles may not intrinsically imply the requirement of a bachelor’s degree orhigher. In these cases, a combination offactors can be used to make the argument that the proffered position is onethat constitutes a specialty occupation.
First, a description of this position (or itsclosest equivalent) should be located within the U.S Department of Labor’s Occupational OutlookHandbook (OOH). If the handbookindicates that a four-year degree is required for this type of position, this willgenerally be accepted by USCIS.
If the OOH does not indicate that such arequirement exists, there are several other ways that an employer may satisfythe “specialty occupation” requirement. Onesuch way is to show that a degree requirement is common within the industry, asshown by postings for parallel positions with similarly-sizedorganizations. Another is by showingthat the employer has consistently imposed a degree requirement for the positionin question. Finally, it can be shownthat the nature of the specific duties involved with this position are socomplex and specialized that they could only reasonably be performed by anindividual with the level of knowledge associated with the attainment of abachelor’s degree.
Congress currently allows for the issuance of65,000 H-1B visas each year, with an additional 20,000 available for employeesholding an advanced degree. In recentyears, this has resulted in a surplus of petitions being received within thefirst 5 days of the new cap period opening, usually on April 1st. This has resulted in USCIS having to conductan H-1Blottery, similar to the green card lottery,in which it randomly selects which petitions may be allocated the available capplaces.
Universities and research institutionsassociated with a university are exempt from the annual cap and may petition onbehalf of employees year-round.
An H-1B worker may bring a spouse and minorchildren to accompany them in the U.S. under the H-4 dependent category. In most cases, a spouse holding H-4 statuswill not be eligible to seek employment in the U.S.
The maximum validity period that an employeemay hold H-1B status for is generally six years. However, in certain limited circumstanceswhere he or she is the beneficiary of an approved or pending I-140 petition,this may be extended beyond six years.
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