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The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations.
In order to qualify for a H1B visa, the occupation 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.
The position must also meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivaled 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, in the alternative, 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 order to qualify to perform services in a specialty occupation, the foreign national applying for the H-1B visa must meet one of the following criteria:
- Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment.
H-1B2 - DOD Researcher and Development Project Worker
In order to qualify under this category, the job must require a bachelor’s or higher degree, or its equivalent, to perform the duties. The petition must be accompanied by:
- A verification letter from the DOD project manager for the particular project stating that the beneficiary will be working on a cooperative research and development project or a coproduction project under a reciprocal Government-to-Government agreement administered by DOD. Details about the specific project are not required.
- A general description of the beneficiary's duties on the particular project and the actual dates of the beneficiary's employment on the project.
- A statement indicating the names of noncitizens currently employed on the project in the United States and their dates of employment and the names of noncitizens whose employment on the project ended within the past year.
The foreign national must have a bachelor's or higher degree or its equivalent in the occupational field in which they will be performing services. This requirement can be met based on one of the following criteria:
- Hold a U.S. bachelor’s or higher degree required by the duties from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree from an accredited college or university;
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the duties of the job and be immediately engaged in that specialty in the state of intended employment;
- Have education, specialized training, or progressively responsible experience in the specialty that is equivalent to the completion a U.S. bachelor’s or higher degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
H-1B3 - Fashion Model
To be eligible under this subcategory, the position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability.
Employers seeking to employ foreign nationals under the H-1B visa must commit to paying the wage rate that is at least equal to the actual wage paid by the employer to other similarly employed workers in a specific occupation in the area of intended employment. This is done through a process called “prevailing wage determination” and is required as part of the LCA. The prevailing wage exists to ensure that a foreign worker will not adversely affect the wages and working conditions of U.S> workers comparably employed.
Period of Stay
H-1B specialty occupation worker or fashion models may be admitted for a period of up to three (3) years. The time period may be extended, but generally cannot go beyond a total of six (6) years.
The CAP a/k/a the LOTTERY
H-1B Visas Subject to cap
According to current immigration laws, the H-1B visa is subject to annual numerical limitations: the current annual cap on the H-1B category is 65,000 new visas for foreign workers in professional or specialty occupations, and an additional 20,000 visas for individual with an advanced degree from a U.S. academic institution. This allows for a total of 85,000 new H-1B visas each governmental fiscal year.
There are usually more applications than is allowed by law, and unfortunately, once the visa cap has been reached, USCIS will stop accepting H-1B petitions for that fiscal year and will not accept new applications until April of the following fiscal year. Thus, it is important for the U.S. Employer to contact an attorney as soon as possible in order to avoid missing the application deadline.
Electronic Registration Process
In 2020, USCIS implemented an electronic registration process for the H-1B cap. Registrants who are selected will have their USCIS accounts updated to include a selection notice, which includes details about where and when to apply. Registrants who are not selected will need to apply for a different visa or wait until the next cap season.
Since USCIS almost always received more registrations than it can accept during the H1B registration period, it will use a computer-generated random selection process to select the registrants that will be invited to apply. Being selected for the lottery does NOT guarantee that you will receive the H-1B visa, but if you are not selected, you will have to re-register the next cap season (usually the following year).
Exceptions to the CAP
If the employer who is sponsoring you is an institution of higher education, a nonprofit organization connected to an institution of higher education, or a government research organization, the cap does not apply. If H-1B exemption has previously been granted for the beneficiary, then the beneficiary will not be subject to the cap.
- Lottery (if not cap-exempt)
- Labor Certification
- Employer/Agent Submits Completed Form I-129
- Prospective Worker Outside the United States Applies for Visa and/or Admission
Labor Certification (LCA for DOL)
In general, the Department of Labor works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. Once a Foreign Labor Certificate application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.
Before filing an H1B petition, the employer must first file an LCA for certification by the DOL which attests (1) it will pay the worker at least the same wage paid to similarly qualified workers in the geographic areas where they will be working; (2) the working conditions of similarly employed workers will not be adversely affected by the worker’s employment and they will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to US workers; (3) there is no strike, lockout, or work stoppage in the occupation at the prospective place of employment, and if one occurs after the LCA is submitted, the Employment & Training Administration (ETA) will be notified and the LCA will not be issued until the strike, lockout or work stoppage has ceased; and (4) notice of the LCA has been or will be provided to workers employed in the same occupation, and the worker will be provided a copy of the LCA. Once the LCA has been certified, the employer may proceed with filing the H1B petition.
The actual process for the Foreign Labor Certificate varies depending upon the program being used. The filing of applications is the responsibility of the employer, but employees can benefit from understanding the program being utilized on his or her behalf. Once a Foreign Labor Certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS. According to the Department of Labor website, “[d]epending on the nature of the program the process for filing could vary between months and years.”
The H-1B visa can be renewed for a total period of stay of up to six (6) years. After that, they must return abroad for alt least one year before being granted H1B status again. Alternatively, if the foreign national decides they want to stay in the U.S. for longer than six years, the H1B holder may become eligible for a green card and file for an adjustment of status to permanent residency, which could eventually lead to U.S. Citizenship.
Family of H-1B Visa Holders
We can assist H-1B applicants’ spouses and unmarried children under 21 years of age to seek admission in H-4 nonimmigration classification. Family members are not eligible for employment in the United States while in H-4 status.
Premium Processing for H-1B Visas
For an additional fee, premium processing of the H1B petition can be requested for a fast-tracked decision. Specifically, USCIS guarantees they will take some adjudicative action on the case within 15 calendar days, or they will refund the premium processing fee and will continue with expedited processing. The use of premium processing does not afford and special cap benefits.
If your H1B petition is approved, you will need to arrange a visa interview at a US consular post abroad. Interview procedures vary widely among consular posts, which is why it is important to have an experienced attorney prepare you.
WE CAN HELP!
Whether you want to participate in the H-1B visa cap lottery or you think you may be exempt from the cap, the employment-based immigration attorneys at the Scott Law Firm are committed to helping employers and helping their employees enter into the United States in a legal manner to enjoy a productive period of employment.
To learn more about the process of applying for an H-1B visa or your immigration options in general, contact our immigration attorneys today.
If you want to verify if you potential employee meets the H-1B qualifications please call us today for an appointment with an experienced immigration lawyer.
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