H-1B: Employment based Non-Immigrant Visas

Under the non-immigrant visas, the H1B is the most oft used work visa. The H-1B visa is meant for employers to petition for foreign workers in specialty occupations, which fulfil a shortage in the country. The position requires a minimum of a Bachelor Degree and the beneficiary employee’s education and experience displays a specialized area of knowledge.  The employee must qualify by the following criteria:

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • 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.

USCIS often refers to the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree. If the OOH does not indicate that a degree in a related field is normally the minimum requirement for the position, examples of evidence you may submit to demonstrate that the position normally requires such a degree includes:

  • Copies of past position announcements, if relevant, that reflect the minimum requirements for the position and which show that your company normally requires a degree for the position.  Your position is so specialized or complex it can only be performed by someone with a degree, including a detailed description of the petitioner’s business/products/services and the duties of the position.
  • A detailed description of the petitioner’s business/products/services and the duties of the position, along with written opinions from experts confirming that your position is so specialized or complex it can only be performed by someone with a degree (in a related field).
  • Job listings, letters and/or affidavits from other employers reflecting the minimum requirements for the position and which shows that the degree requirement is common to the industry in parallel positions among similar organizations.
  • Written opinions from experts in the field explaining how the degree is related to the role you will perform
Some of the evidence you may submit to demonstrate that your degree is related to your position includes:

  • A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.
  • Written opinions from experts in the field explaining how the degree is related to the role you will perform.
  • Printouts from online resources describing the degree fields normally associated with the occupation.
  • Evidence that similar companies in your industry require similar degrees for similar positions.

 

+ To demonstrate you will be paid the appropriate wage, you must submit a Labor Condition Application (LCA) for your position, certified by the Secretary of Labor, which states, in part:

The employer is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.

If you are currently working for the company (e.g. working for the company you started while on OPT), some of the evidence you may submit to demonstrate that you will be paid the appropriate wage includes:

  • Your most recent paystubs
  • Your most recent W-2 showing the wages you received

If you are not currently working for the company, you may submit a letter from the company attesting to the wage that you will be paid once employed as an H-1B.

The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location.

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

Along with documentation that verifies the conditions, the employer must apply with an approved Labor Certification, I-129 form, an employment support letter, employee biographic documents, and more. USCIS charges filing fees for each petition, which have increased on December 23, 2016. There is an option to make your H-1B applications go faster, which is filing it under “premium-processing”, but this does require an additional filing fee.  Please see the filing fees required to file an H-1B on the table below.

Filing Fee Amount
Form I-129 $460
USCIS Anti Fraud Fee $500
ACWIA Education and Training Fee $750

(For employers less than 25 employees)

$1500

(For employees more than 25 employees)

Premium Processing (optional) $1225

 

Once your H-1B visa is filed, USCIS might issue a Request for Evidence (RFE) to gather more documentation/information about your case to make sure you are meeting the H-1B conditions. Last year, we noticed a couple of trends that preceded the USCIS’s requests for evidence.

 Please follow the link below in regards to these trends. http://www.ahluwalialaw.com/rfe-trends-blog/