What is an H-1B? The Immigration and Nationality Act determines which classes of people can be admitted into the country. These various visa classifications can be found in INA 101(a)(15) subjections (A) through (V). The H-1B got its name from 101(a)(15)(H)(i)(b) which says that a person can be admitted into the United States if they are “coming temporarily to the United States to perform services … in a specialty occupation.”
The key words here are “temporarily” and “specialty occupation.” The H-1B visa is a temporary visa also known as a “nonimmigrant” visa. It is temporary because it can only be used for six years (there are some exceptions) and is not intended to be used for permanent jobs. Furthermore, not all jobs qualify for the H-1B visa classification, only those that can be considered specialty occupations will qualify (more on this later).
In order for an individual to obtain an H-1B visa, a U.S. employer must sponsor the individual by filing a petition with the United States Citizenship and Immigration Service (USCIS). The petition is filed using Form I-129 Petition for a Nonimmigrant Worker.
While the H-1B is the visa of choice for many foreign workers in the United States, it has some major drawbacks, the biggest being the limited number available each year. The current annual cap on the H-1B category is 65,000. An advanced degree exemption is provided for the first 20,000 petitions filed for an individual who has obtained a U.S. master’s degree or higher. For the last 10 years, the H-1B visas were used up before the next year’s allotment became available. That means that there has been a window every year for the last decade in which visas were unavailable. Some years, the window of unavailability was small. In recent years however, the window of unavailability is over 17 months. How is this possible?
On October 1st of every year, the U.S. government makes available the 65,000 (plus 20,000 exemption) H-1B visas for the upcoming “fiscal year.” The filing window begins on the first business day of April of each year because the immigration rules allow an H-1B petition to be filed up to six months prior to the start date of the visa, i.e. April 1st is six months prior to October 1st, the date the visas become available for the fiscal year.
In recent years, the entire allotment of visas has been used up in the first five days of the filing window. Once the window closes, an employer wanting to sponsor an H-1B worker cannot hire that person until October 1st of the following year. Therefore, visas remain unavailable for over 17 months (April 5th to the following October 1st).
In FY 2019, USCIS received 190,098 H-1B petitions, but there were only 85,000 visas. So, how do they decide who receives a visa? by lottery. Starting in FY 2020, all petitions will go through an initial lottery to select 65,000 (actually, USCIS selects about 20,000 more than this to account for petitions that are ultimately denied or withdrawn). Then, the remaining petitions that were not selected but were filed on behalf of individuals with U.S. Master’s degrees will go through a second lottery to select the 20,000 for the advanced degree exemption. What Jobs Can Qualify for an H-1B? As mentioned above, only jobs that are considered “specialty occupations” can be the basis for obtaining an H-1B visa. INA 214(i)(1) defines the term "specialty occupation" to mean an occupation that 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
If a license is required to practice in the occupation, the worker (commonly referred to as the beneficiary of the petition) must demonstrate that he or she has full state licensure to practice in the occupation at the time the petition is filed. The INA further specifies that the worker must have completed the bachelor’s or higher degree in the specific specialty, OR possess experience in the specialty equivalent to the completion of such degree along with recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
In other words, the job being offered to the individual being sponsored for the visa must be one that normally requires at least a bachelor’s degree in a specific field and the individual being sponsored must possess that same degree or its equivalent.
How do you know if the job being offered normally requires a degree? You can go to the source used by USCIS: the Occupational Outlook Handbook (OOH) published by the United States Department of Labor’s Bureau of Labor Statistics. The OOH issues career information about hundreds of occupations and is available online at: http://www.bls.gov/ooh/. You can search the handbook for your job title and find out what level of education is normally required for the position.
When you use this guide, understand that it uses very generic occupation categories that may not match exactly with the job title for the position you are being offered. You’ll need to find the category that most closely matches your job offer. Also, understand that USCIS does not look at job title alone. They will also review the job duties for the offered position to see if they are those that would typically require a degree. Once you find an entry in the OOH that closely matches your job offer (both job title and job duties), click the “How to Become One” tab. You should find a short summary of the education normally needed for the job. For example, the entry for Chemists states “A bachelor's degree in chemistry or in a related field is needed for entry-level chemist jobs.” This indicates that a Chemist would likely be considered to be a specialty occupation which qualifies for the H-1B visa. What Qualifications Must I Possess to Obtain an H-1B? Just as the job being offered must normally require a degree in a specific specialty, you must possess the degree in that specialty in order to qualify for the visa. For example, if a Software Engineer typically needs a bachelor’s degree in computer science, an individual holding a bachelor’s degree in business may not be considered qualified.
If your degree is not from a United States school, it must be considered the equivalent of a degree from a United States school. Therefore, if your bachelor’s degree is from a school outside the U.S., you will need to obtain an education evaluation confirming that it is equivalent to a U.S. degree in the required fielf of study.
If you do not hold the required degree, you may still qualify for the visa if you possess experience in the specialty equivalent to the completion of such degree AND recognition of expertise in the specialty through progressively responsible positions relating to the specialty. What Qualifications Must My Sponsoring Employer Possess? Technically none, other than that the entity filing the H-1B petition must be a “U.S. employer.” The term “U.S. employer” is actually defined by the immigration regulations and means “a person, firm, corporation, contractor, or other association, or organization in the United States which:
Engages a person to work within the United States;
Has an employer-employee relationship (i.e. it has the right to hire, pay, fire, supervise, or otherwise control the work of the individual being sponsored); AND
Has an Internal Revenue Service Tax identification number
Although there really are no specific qualifications that an employer must meet in order to obtain an H-1B visa for an individual, not all employers are created equal, and there are some that may be more advantageous than others. Here are some things you should consider when evaluating a potential employer sponsor:
How do they treat employees?
How has your experience been so far?
Have there been any instances in which you were not paid or paid less than what you were expecting?
Do they seem to keep good records (I-9 forms, payroll, taxes, etc.)?
Do you know other employees who have been successful in obtaining an H-1B visa (both petition approval and visa stamp)?
Have they sponsored any H-1B workers for permanent residence (i.e. the green card) before?
Are they familiar with the H-1B requirements or do they have an attorney who is?
While any U.S. employer can potentially file an H-1B petition, there are some red flags that you should look out for to avoid ending up with a denied petition. Most importantly, use common sense in evaluating any job offer. Does it sound too good to be true? The company should have a real job available for you at the time of filing (beware of an employer who says they will file now but will find a job for you later, that is speculative and is not allowed). The job should be in line with the company’s business (for example, a gas station and convenience store probably doesn’t need a full time accountant to work in-house). The company should not be asking you to pay for the process (the regulations specifically prohibit this). The company should have an actual office space (not a home-based business or virtual office). While start-up companies are not prohibited from filing an H-1B petition, they should be prepared to provide strong documentation that they can support a full-time professional and have sufficient work for the next three years. What Documents are Required in the H-1B Petition Filing? While some documentation will depend on the specifics of the case, there are some basic documents that must be submitted with every H-1B petition. Form I-129 is the form used to apply for the H-1B classification. This form is used for multiple visa types, so not all parts are applicable to the H-1B. A certified Labor Condition Application (often referred to as an LCA) ETA Form 9035 must be included. These forms make up the basic H-1B petition. Supporting documents are also required to establish eligibility for the H-1B classification. This normally would include education documents, an offer letter or employment agreement, and a letter of support from the employer sponsor describing the background of the company, the job being offered, the minimum education required for the job, and how the sponsored worker qualifies.
Note that there are two parts to an H-1B petition: 1) the petition itself, which asks the immigration service to determine whether the position being sponsored qualifies for the visa and whether the applicant qualifies for the position; and 2) the status of the applicant, which asks the immigration service to either change the status of the applicant from some other visa type to an H-1B visa holder or approve the petition for consular processing. The documents needed for part 1 will be basically the same for all applicants as detailed above, but the documents needed for part 2 will vary depending upon which visa type you currently hold or if you are outside the country. Below you will find a list of documents needed for each type of applicant. Note that all documents require copies only, originals are not necessary.
The decision to request a change of status or consular processing for those that are currently in the United States in another status is an important one. If there are any possible status violations that have occurred in the past, discuss with your attorney! What Rules Protect Me From Unscrupulous Employers? H-1B workers are granted a number of rights, which are protected by the U.S. Department of Labor. The Immigration and Nationality Act sets forth certain prerequisites for employers wishing to employ H-1B workers. To obtain an H-1B approval, an employer must file a Labor Condition Application (LCA) in which the employer must confirm that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B worker being sponsored. Within the regulations, there are many provisions which detail an employer’s obligations regarding payment of wages to H-1B workers.
First, the regulations determine the amount of wages that must be paid. The wage shall be the greater of the actual wage rate or the prevailing wage. Note that the employer is required to provide you with a copy of the certified LCA (Form ETA 9035) which includes both the prevailing wage and the wage offered in the H-1B petition.
Second, the regulations set forth when the wages must be paid. An H-1B worker must receive the required pay beginning on the date when the nonimmigrant “enters into employment” with the employer. Note that even if you are not performing work and are in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), the employer is still required to pay you the full amount due.
Third, the regulations are strict regarding any deductions that an employer may make from an H-1B worker’s wages. Typically, only deductions for income tax withholding, FICA, Social Security, Medicare or deductions for insurance premiums, retirement plans, and the like are allowed. The regulations specifically state that an employer is not permitted to require (directly or indirectly) that you pay a penalty for ceasing employment with the employer prior to an agreed date. Therefore, an employer cannot make any deduction from or reduction in the payment of the required wage to collect such a penalty. Furthermore, an employer may not receive, and you may not pay, any part of the $750 or $1500 additional filing fee (ACWIA fee), whether directly or indirectly, voluntarily or involuntarily.
Fourth, the regulations govern employee benefits for H-1B workers. Benefits, such as cash bonuses; stock options; paid vacations and holidays; health, life, disability and other insurance plans; retirement and savings plans, must be offered to you on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
Fifth, the regulations require the employer to provide the employee with payment for transportation home under certain circumstances. What Should I Expect From an Attorney Filing My H-1B Petition? If you are searching for an attorney to prepare and file an H-1B petition on behalf of your employer sponsor, here are some things you should consider:
Does the attorney practice in other areas of law besides immigration? Any licensed attorney may represent you in your immigration case. However, immigration law is very complicated and changes frequently. Therefore, if someone practices immigration law infrequently, he or she may not be the best person to represent you. (Remember: A general physician may be a good doctor, but you wouldn’t go to one for brain surgery!)
Is the attorney a member of the American Immigration Lawyers Association (AILA)? AILA is the national association of more than 13,000 attorneys and law professors who practice and teach immigration law. An attorney does not have to be a member of AILA to practice immigration law. However, AILA helps its members keep track of best practices and frequent changes in the law, all of which contribute to the success of your case.
How long has the lawyer been practicing immigration law? New immigration attorneys can certainly do a good job, but it is incredibly useful to hire an experienced attorney.
Has the attorney handled many cases that were similar to yours? What were the results? Feel free to ask about the attorney's track record, such as the number of cases filed or approved, for example.
How will the attorney let you know what's happening with your case? Communication is key when working with a lawyer. Ask the lawyer how often and under what circumstances you will hear from him or her.
Do you trust the attorney? Trust is the most important part of an attorney-client relationship. If you do not trust the attorney, do not hire him or her. If friends or family members have worked with the attorney before, talk to them about their experience.
Before you take the plunge and file your H-1B, don’t forget to ask about the chances of success. It is heartbreaking to see cases that made it through the lottery only to be denied months later. Your lawyer should lay out your options regarding the case and not necessarily guarantee a certain outcome. Ask your lawyer to identify for you the strengths and weaknesses of your case and to explain the pros and cons of pursuing each of the options he or she says you have. Although a lawyer should never guarantee a specific outcome, you should ask your lawyer about your chances of approval. The answer to this question may determine how you proceed. If your case is weak or has other difficult legal issues you need to know about them up front. You always want your lawyer to be truthful and honest with you concerning his or her assessment of the case.