The “H-1B” Visa for Skilled Professionals
Without exception, the most popular employment-based nonimmigrant visa is the H-1B, which allows for U.S. companies to obtain professional, skilled foreign workers. The H-1B is so coveted that the annual allotment of 85,000 visas are only available through lottery. Although the H-1B is intended as a temporary work visa, most beneficiaries of this status start the employment-based green card process within the first four years of receiving the H-1B.
The range of industries that can support an H-1B petition may be unlimited but the occupations within those industries is circumscribed. The statute and regulations list occupations that usually support H-1B petitions, like banking, engineering, finance, teaching, and medical positions, but the title of an offered position will never satisfy the H-1B requirements. To qualify for an H-1B status, the two critical requirements are that the offered position is a “specialty occupation” and the beneficiary is qualified for the position. Meeting both requirements is intimately linked to the beneficiary’s education.
A specialty occupation is a position that requires the “theoretical and practical application of a body of highly specialized knowledge” and a bachelor’s degree or higher as a prerequisite to getting the position. These two requirements work together and companies can demonstrate their position’s eligibility by demonstrating complex job duties, hiring practices, and commonality within their industry. In each of these avenues, the relevant concepts from the required degrees should be highlighted. However, in explaining their position’s complexity and requirements the U.S. company must also show the beneficiary is qualified for the position, often by virtue of their education. If the foreign national has a degree in finance then they are likely to be qualified for a financial analyst position; a degree in biology is unlikely to qualify one for a position as an editor.
There are a slew of other requirements that accompany the H-1B petition, such as the prevailing wage requirement, the employer-employee relationship, itineraries for third-party worksites, maintenance of status, employer obligations, and the additional filing fees ($500 and $750/$1,500).
Every H-1B petition is different, and each presents its own challenges. USCIS has started taking a narrower view of positions and beneficiaries that qualify for H-1B status, and this interpretation has affected both longtime visa holders and previously uncontested occupations. However, with probative, credible, comprehensive, and thoughtful evidence difficult H-1B petitions can still be won. At Palm Global, we specialize in taking on tough H-1B cases.
The H-1B status is valid for a maximum of 6 years; spouses and dependents may join the principal visa holder in H-4 status but may not work. However, both the 6-year limit and ban on spousal work authorization is lifted if the principal H-1B holder has started the PERM process for employment-based permanent residence. The lottery only has to be done once, and H-1B beneficiaries may transfer jobs and employers by filing a new H-1B petition with USCIS.
The H-1B classification also covers fashion models and Department of Defense placements. A subcategory of the visa is the H-1B1, which circumvents the lottery requirement for Chilean and Singaporean nationals. There are also cap-exempt H-1Bs available to individuals working at institutions of higher learning and associated non-profits, which often covers foreign physicians in H-1B status.
The H-1B Lottery
In 2020, USCIS instituted a registration process for the H-1B lottery. This long-awaited change will result in tremendous savings in legal fees for employers and will significantly reduce the processing burden on USCIS. It will also inform foreign students playing the lottery whether they have been selected or not in a timely fashion allowing them to better plan their future in the U.S. The new registration process is also designed in a way to increase the chances of success for H-1B hopefuls with master’s degrees.
The registration process will take place online and will require a $10 filing fee. The required information includes the beneficiaries full name, birth date and place, citizenship, passport number, gender, and an employer attestation. Although a Labor Condition Application and position specifics are not required, the employer attestation ensures that there is a bona fide job offer in a specialty occupation. Attorneys can complete this registration for the employer.
After the registration period is complete, USCIS will conduct the first for the 65,000 H-1B visa slots, followed by a second lottery for the 20,000 master’s degree slots. If selected in the registration, the employer has 90 days to file the physical H-1B petition. These petitions will be adjudicated in order of filing – for this reason some employers may opt to file their Labor Conditions Applications early.
Cap-exempt H-1B employers and current H-1B holders are not required to register or play the lottery.