The H-1B visa is one of the most popular employment-based visa options, and filing season is just around the corner! But what kind of jobs does the H-1B visa cover and how do employers go about obtaining this status for an employee?
H-1B Eligibility
The H-1B visa category was first created by Congress in 1990. It allows for the temporary employment of foreign workers within certain “specialty occupations”. These are defined as occupations that require the “theoretical and practical application of a body of highly specialized knowledge”, and the attainment of a bachelor’s degree or higher as the minimum entry requirement in the U.S. However, in some cases, an employee may be able to use work experience to overcome the degree requirement.
It must also be shown that the potential employee holds any licenses or other certification required by the relevant profession, and that the employer is willing to pay at least the prevailing wage for that particular work location and occupation.
There are many professions that readily meet this definition, including teachers, lawyers, engineers, and doctors. However, there are many other positions whose titles may not intrinsically imply the requirement of a bachelor’s degree or higher. In these cases, a combination of factors can be used to make the argument that the proffered position is one that constitutes a specialty occupation.
First, a description of this position (or its closest equivalent) should be located within the U.S Department of Labor’s Occupational Outlook Handbook (OOH). If the handbook indicates that a four-year degree is required for this type of position, this will generally be accepted by USCIS.
If the OOH does not indicate that such a requirement exists, there are several other ways that an employer may satisfy the “specialty occupation” requirement. One such way is to show that a degree requirement is common within the industry, as shown by postings for parallel positions with similarly-sized organizations. Another is by showing that the employer has consistently imposed a degree requirement for the position in question. Finally, it can be shown that the nature of the specific duties involved with this position are so complex and specialized that they could only reasonably be performed by an individual with the level of knowledge associated with the attainment of a bachelor’s degree.
H-1B Availability
Congress currently allows for the issuance of 65,000 H-1B visas each year, with an additional 20,000 available for employees holding an advanced degree. In recent years, this has resulted in a surplus of petitions being received within the first 5 days of the new cap period opening, usually on April 1st. This has resulted in USCIS having to conduct an H-1B lottery, similar to the green card lottery, in which it randomly selects which petitions may be allocated the available cap places.
Universities and research institutions associated with a university are exempt from the annual cap and may petition on behalf of employees year-round.
H-1B Validity
An H-1B worker may bring a spouse and minor children to accompany them in the U.S. under the H-4 dependent category. In most cases, a spouse holding H-4 status will not be eligible to seek employment in the U.S.
The maximum validity period that an employee may hold H-1B status for is generally six years. However, in certain limited circumstances where 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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Disclaimer: Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
