Basic Overview of the H-1B Visa Qualifications and Procedures

Background and Basics

The H-1B is a non-immigrant visa that allows United States employers to petition on behalf of a foreign national employee to work in a “specialty occupation” on a temporary basis. While the configuration of the visa program has changed over the years, the current H-1B program has been in effect since the Immigration Act of 1990. Qualifications for specialty occupations will be discussed in more detail, but are generally comprised of highly educated workers like scientists, economists, engineers, and doctors. In fact, almost two-thirds of H-1B visa applicants work in the STEM fields (science, technology, engineering, mathematics). These visas do not include workers who may qualify for an O visa (those with extraordinary ability) or P visa (entertainers and athletes). However, fashion models with “distinguished merit and ability,” as measured by prominence in the field, may qualify for H-1B visas.

The goal of the H-1B visa program is to enhance the U.S. economy by bringing skilled foreign workers to fill employments gaps in fields or geographical areas where American workers are lacking. Program guidelines stipulate that hiring the foreign worker must “not adversely affect the wages and working conditions of similarly employed U.S. workers” This is one of several provisions of the program designed to protect American workers.

Both the potential employee and the position itself must meet statutory guidelines. In order for the position to be considered a “specialty position,” at least one of the following must be true:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Petitions for the visas are statutorily capped at 65,000 per year, and an additional 20,000 visas are available to specialty workers who completed a Master’s or Doctorate program at a U.S. university. The annual cap on H-1B visas was increased in some years to meet market demands, but generally stays at 65,000 per year.

The H-1B Petition and Process

Each year on April 1st, the application period for H-1B visas opens. As demand has exceeded available visas in many recent years, over 65,000 petitions are often received shortly after April 1st. If enough applications to fill both the 65,000 and 20,000 caps for each category are received within the first five business days of April 1st, the application period closes, and petitions received in those five days are entered into a “lottery” for the available visas. This year, the cap was reached in just six days.

Before the visa application can be filed, the employer must obtain a labor condition application (LCA, Form 9035) which has been certified by the Department of Labor. An LCA requires the employer to attest that she is offering wages that meets or exceed the prevailing wage for that type of work in the area, and that the working conditions of American workers will not be adversely affected by hiring a foreign national. The visa application itself consists of form I-129, an H supplement, and various other documentation. There are many fees involved in the filing, in varying amounts depending on the employer’s size and circumstances. The process is very intricate, and having an experienced immigration attorney to guide petitioners through the process is highly advisable.

The H-1B visa is a non-immigrant visa, and is meant for workers who have no intent to abandon their country of residence. However, recipients are required neither to maintain a residence in their home country, nor overcome the INA § 214(b) presumption that they intend to immigrate.

The recipient of an H-1B visa is permitted to remain in the U.S. and work in the designated position for a period of three years. Extensions are available, up to a period of six years. This six years includes any time spent in the U.S. on (or in violation of) any immediately preceding H or L visa.

Being granted an H-1B visa also allows the worker to bring immediate family members to the U.S. with him or her. Family members do not count against the H-1B visa number caps. Each qualifying member receives an H-4 visa, which gives many rights and privileges, but does not allow for work permits.

Those H-1B beneficiaries who are abroad when an employer files a petition on his or her behalf can have the H-4 visa requests automatically incorporated into the initial petition, but the H-4 recipients will still need to apply at their U.S. Consulate abroad for entry to the U.S. If the worker is already in the U.S. upon application, the H-1B visa recipient will need to separately file forms I-539 for their immediately family members.

An employer seeking to hire a highly-skilled foreign national should speak with an immigration attorney to see if an H-1B visa may work for her situation. The process entails a lot of research and planning, and involves commitments not involved with a U.S. citizen employee. For instance, the employer of an H-1B employee is responsible for the cost of return transportation to the employee’s country of residence if the employment ends early, regardless of the reason.

Benefits of the H-1B Visa Program

Given the current political climate, some might think the H-1B program is harmful to the U.S. labor force, but research shows otherwise. The program does not undermine American workers by offering “cheap labor.” When compared to American workers with the same education, job, and age, H-1B workers are generally equally or higher paid. Wage growth in occupations with many H-1B applicants substantially exceeds growth for college-educated workers not in H-1B-heavy fields, and unemployment rates are much lower than the national average in fields with many H-1B workers.

The H-1B program benefits employers by giving them a wider pool of talent from which to draw. Recipients have the opportunity to work and live in the United States for an extended period of time without immigrating. And the U.S. economy benefits from the skills of foreign nationals. Please contact experienced immigration attorney Jane Lee if you would like to learn more about H-1B visas.

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