H-1B visas are one of the visas we handle quite often as a business immigration firm. Seeing that it is the most popular visa for highly-skilled foreign workers, we receive a lot of questions regarding the requirements and procedures for H-1B visa applications. In preparation for the upcoming H-1B cap season in April 2017, let’s go take a look at the requirements for H-1B visas.
If you’re looking to have an H-1B visa petitioned on your behalf, there are specific qualifications the you must meet. First, there must be a valid employer-employee relationship, which means the employer possesses the right to hire, fire, pay, and supervise your work—having full control of your employment. Furthermore, your job must be considered a “specialty occupation.”
Understanding the requirements can be a little tricky, so let’s break down what “specialty occupation” really means. A “specialty occupation” means you must have at least a Bachelor’s degree or its equivalent in a specific field of study related to the offered position, and education from foreign institutions must be evaluated for equivalency. If you do not have Bachelor’s degree, you can still qualify for an H-1B if you have an unrestricted state license, registration, or certification that authorizes you to practice the specialty occupation, or you can have you work experience evaluated to the completion of a Bachelor’s degree. In general, every three years of work experience or training in the field is equal to one year of college education. Another option to qualify for “specialty occupation” is showing that it is common practice in the industry to require a degree requirement for your position. A “specialty occupation” can also be a job that is standard for the employer to hirer someone with a degree or its equivalent for the position. If the job duties are so complex and specialized that a bachelor’s degree or higher is obviously required to properly carry out the duties, then, it can be considered a “specialty occupation.” In addition to your position having to be a “specialty occupation,” you must satisfy a couple more requirements.
In order to qualify for an H-1B visa, your salary must at least match the actual or prevailing wage for your occupation, whichever is higher. The prevailing wage depends on your position and the geographic location of your employment as well as other factors. The appropriate wage is determined by a Department of Labor (DOL) database, which can be found at the Foreign Labor Certification Data Center.
Last but not least, there must be an available H-1B visa number with the exception of H-1B visas exempt from the yearly cap. The cap numbers fill up very quickly, so employers are advised to file as soon as they are able to, which is April 1st—six months before the new batch of H-1B visas become available on October 1st. To find out how to stay ahead of the competition for the upcoming H-1B visa filing season, stay tuned to our next article, in which we will go over strategies and tips to best prepare for the upcoming April 1st H-1B filing deadline.
Edited by Winnie Kan, Director of Marketing and Public Relations.
Please note that this article is not legal advice. If you have any questions or concerns regarding your immigration case, your best option is always to contact an immigration lawyer to discuss your situation, because immigration cases are all individual and vary case-by-case. If you have any additional questions, please contact attorney Barbara Wong, Esq. at [email protected] or (408) 329-9184 ext. 120.