America’s large and dynamic economy is in constant need of global talent, offering plenty of options and opportunities to skilled and experienced workers worldwide. Among the most promising pathways to United States is the H-1B Visa, designed to attract foreign workers to perform services in a “specialty occupation” or as a fashion model. Like all programs in the U.S. immigration system, the H1-B has complex requirements and procedures that must be meticulously met to better your chances of success.
Whether you are an employer seeking a qualified foreign worker for your business, or a foreign national wishing to take your skills to America, Jurado & Associates, P.A. is ready to be your partner and guide on your journey through H-1B process.
An Overview of the H-1B Visa
In basic terms, the H-1B is designed to attract foreign workers with certain skills, knowledge, and qualifications to benefit U.S. employers. Thus, an H-1B candidate must have a job lined up with a U.S. employer, who will be responsible for obtaining and submitting the applicable paperwork. Without a job offer, the candidate cannot even begin the process of obtaining an H-1B.
Crucially, the position being offered to a prospective foreign worker must also meet H-1B guidelines—namely, it must have the characteristics of a “specialty occupation” under the regulations. The employer must prove that the H-1B position requires:
- Theoretical and practical application of a body of highly specialized knowledge; and
- Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Additionally, the job must meet one of the following four criteria to qualify as a specialty occupation:
- At least a bachelor’s degree, or its equivalent, is normally the minimum entry requirement for the particular position.
- The degree requirement is common to the industry in parallel positions among similar organizations or the job is so complex or unique that it can be performed only by an individual with a degree.
- The employer normally requires a degree or its equivalent for the position.
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
In other words, you cannot assume the position will obviously appear to be a specialty occupation to U.S. Citizenship and Immigration Services (USCIS). Even if the job title or industry seems specialized on its face—for example, you are seeking a computer engineer for your tech company—you will still be required to provide detailed evidence about how and why it requires highly specialized knowledge, what the industry standard requires, and so on.
As for the foreign worker, they must prove they are qualified to perform services in a specialty occupation by meeting one of the following criteria:
- Hold at least a U.S. bachelor’s degree from an accredited college or university as required by the specialty occupation.
- Hold a foreign degree equivalent to a U.S. bachelor’s degree or higher from an accredited college or university.
- Hold an unrestricted state license, registration, or certification that authorizes the worker to immediately and fully practice the specialty occupation in the relevant jurisdiction.
- In the absence of a U.S. or foreign degree, have equivalent education, specialized training, and/or experience and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
None of these criteria are an exact science, and there are various ways they can be met depending on the circumstances of the employer, the nature of the business, and what the foreign worker’s background. That is why the individualized approach of Jurado & Associates, P.A. is so vital.
Obtaining a Labor Certification
Ensuring that both the job position and the foreign worker meet H-1B requirements is only half the battle. Although the U.S. welcomes tens of thousands of nonimmigrant workers every year, it also has strict regulations designed to protect American jobs from foreign competition.
Thus, even if the position qualifies as a specialty occupation for which the foreign worker is proven to be qualified, you must prove that employing the foreign worker will not be at the expense of U.S. workers.
This requirement is met through the PERM process, through which prоѕресtivе H-1B еmрlоуеr must оbtаin an approved “Labor Cеrtifiсаtiоn Аррliсаtiоn” (LCA) from the U.S. Department of Labor (DOL). An LCA includes details about the position as well as promises by the employer that hiring the H-1B candidate will not adversely impact U.S. workers.
Among other things, the PERM process requires the employer to undertake several efforts at recruiting U.S. workers, demonstrate that they will pay the foreign worker the “prevailing wage” for that position (i.e., not employing cheaper foreign labor), and prove that they made a good-faith effort to consider any U.S. candidate who applied. All this must be done in accordance with DOL requirements, and completing the PERM process is itself a multistep endeavor that can take extra time without proper legal guidance.
Only with an approved LCA can the employer then submit Form I-129, Petition for Nonimmigrant Worker, along with all documentary evidence.
The H-1B Cap
By law, the number of people who can receive H-1B status every year is limited to 65,000. This makes it crucial that the entire application is done as effectively as possible, from obtaining the LCA to submitting the proper forms, fees, and evidence.
Note that certain applications are exempted from this limit, including the first 20,000 реtitiоnѕ filed on behalf of workers with a U.S. master’s degree or higher, and petitions by institutions of higher education, nonprofit research organizations, or government research entities.
The H-1B cap is set by Congress and thus subject to legislative change in the future. Hence why it is crucial to hire qualified immigration attorneys who keep up to date on this complex visa requirement.
Duration of Stay
The H-1B Visa is a “nonimmigrant” classification, meaning the foreign worker must eventually leave the U.S. The initial period of stay is up to three years, and typically cannot be extended beyond six years.
However, there are ways around this limitation: H-1B holders have the option to file for legal permanent residence—a.k.a., a Green Card—while they remain in status. If the Green Card application is made before the beginning of the sixth year of their H-1B status, the visa can be extended by one-year increments indefinitely until they receive a decision on their residency decision.
Maximizing your potential duration of stay—including the possibility of obtaining a Green Card—requires careful timing and a clear understanding of the law, making professional legal counsel crucial.
Fortunately, the H-1B worker does not have to leave their immediate relatives behind: Spouses and unmarried children under 21 years may seek “H-4” status that is tied to the duration of the H-1B holder. Likewise, H-4 nonimmigrants may also petition for a Green Card along with the H-1B worker.
Note that those H-4 status may not work in the United States, although children can attend school.
Hire Specialists in the H-1B Visa – Jurado & Associates, P.A.
As should be clear by now, an H-1B Visa is not something to pursue lightly. Both the U.S. employer and the prospective foreign worker must fulfill a wide range of requirements, some of which—like obtaining an LCA—are multistep processes in themselves.
This is where an expert Immigration Attorney from Jurado & Associates comes in. Our team offers years of experience and knowledge helping clients over the world with their immigration matters. We have helped employers and workers alike navigate the complex H-1B process and devise the most effective strategies for increasing their chances of approval. To learn more or schedule a consultation, call (305) 921-0976 or email [email protected].