What is the H-1B Visa?
H-1B is a classification for “specialty occupation workers”.
A specialty occupation worker is a person who will be employed to work in a job which requires at least a Bachelor’s degree in a specialized field of study.
What are the general requirements for an H-1B Visa?
- The position being offered must be a specialty occupation.
- The alien must be qualified for that specialty occupation.
- The alien must be paid at least the prevailing wage.
Example of specialty occupation:
A foreign worker with a Bachelor’s degree from a US University in exactly the field in which the sponsor intends to employ him would be qualified for H-1B.
On the other hand, if the employee’s degree is from a foreign university it may, or may not be equivalent to a U.S. Bachelor’s, so we must show the equivalence between these two degrees.
What is the prevailing wage?
Is the average of the wages paid to similarly employed US workers in the metropolitan area in which the employee will work. This rule seeks to protect U.S. workers against displacement;
i.e. a company hires cheaper foreign labor for specialty occupation positions.
Is there a lottery process?
Recently, the number of applicants applying for initial H-1B have greatly exceeded the number of annual initial H-1B allocated per year.
For example, for FY 2019, USCIS received 190,098 initial H-1B petitions. Each year, there is a cap of 20,000 H-1Bs allocated to foreign nationals who have at least an advanced degree from a U.S. university (frequently known as “Master’s Cap”) and 65,000 for all other foreign nationals. Therefore, there are 85,000 H-1Bs per year allocated for initial applications.
Of the 65,000, 6,800 is set aside for alien nationals from Chile and Singapore pursuant to U.S. – Chile and U.S. – Singapore free trade agreements.
Because the number of applicants have exceeded the number available, USCIS has conducted a lottery to determine which H-1B petitions will be selected for processing.
How long does it last for?
It may be approved for up to 3 years, and can be extended another 3 years for a total of 6 years. However, if the alien national has an approved I-140, then he/she can continue to extend the H-1B beyond the 6 year period.
Does the company size matter?
In reality, it can matter as it relates to whether the company has filed for a similar position in the past, its revenues, net profit and the nature of the specialty occupation. Nonetheless, our firm has a vast experience helping mid-size companies to bring talent from overseas.
What are some attestations that the employer must make for purposes of H-1B petition?
In addition, the employer must attest to the following:
- Foreign workers will not adversely affect the working conditions of workers similarly employed. The employer further attests that the foreign national will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers.
- There is not a strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment, and if such even occurs, the employer shall notify ETA (Employment & Training Administration) within 3 days of such an event.
- Labor Condition Application (LCA) has been or will be provided to workers employed in the named occupation.