Non-immigrant worker H1B visa is so popular because of its dual purpose. First, it allows you to come to the USA to work and stay with your family members (spouse and children under 21) for a long period of time (up to 6 years). Second, having H1B status, you and your family members can apply for a green card and become US lawful permanent residents (LPR).
What are the H1B visa requirements?
1. You should demonstrate an employer-employee relationship with your employer and your US employer should file an H1B visa petition.
On USCIS site you can find that in order to qualify for H1B visa, you have to “demonstrate an employer-employee relationship with the petitioning U.S. employer.” What does it mean, taking into account that any US employer can hire you only if you have a legal US status, which allows you to work on the US territory?
In this context “to demonstrate an employer-employee relationship” means a willingness and ability to enter into this kind of relationship on your side and on the side of your potential employer. Your employer should be able and willing to hire you as its employee and sponsor you in the H1B visa obtaining process. On your side, you should be able and willing to be hired by your employer and to work for this company in the agreed quality for an agreed period of time.
In more practical terms, it means that an employer should make you a job offer and be willing to sponsor you during your H1B application process, including filing form I-129, Petition for a Nonimmigrant Worker; and you should accept the offer on the terms agreed upon and comply with your employer’s working rules and schedule. Usually this condition is fulfilled by signing an employment contract, which begins not immediately, but after you get your H1B status. You can apply for H-1B visa six months before your employment begins.
2. Your job should be a “specialty occupation” (in general, a bachelor’s degree or higher is required).
The usual minimum educational requirement for H1B visa is a bachelor’s degree (its equivalent) or higher (master’s degree, Ph.D., LL.M. etc.). Such a degree requirement should be common for your position in the industry, or your job should be complex enough to justify a bachelor’s or higher degree requirement. It’s should be a common practice for your employer to require a bachelor’s or higher degree for the type of job you are going to be hired for, and your duties should be complex enough to require certain specific knowledge usually associated with a bachelor’s degree or higher.
There are certain ways how to prove that your potential position requires a bachelor’s degree or higher. The easiest way is to find your future position in the Occupational Outlook Handbook (OOH) of the Department of Labor (DOL) and make sure that in the job description there is an educational requirement of at least a bachelor’s degree there. USCIS usually checks position requirements against the OOH.
However, even if you cannot find necessary position requirements related to your job in the OOH, you can prove it by other means. For instance, you can make copies of past position announcements to demonstrate that your employer used to require this kind of degree for your type of position. You can also attach a detailed description of your employer’s business, as well as duties of your position with experts’ opinions explaining that your position is complex enough to justify a requirement of a bachelor’s degree or higher in the industry. You can also add job descriptions from other employers in the field to prove that this level of education is common for this kind of position in the area.
What if your position does not require a bachelor’s degree, but rather its equivalent?
Some positions do not require a bachelor’s degree, but still qualify for H1B visa. For instance, fashion models of distinguished merit or ability are among those who can file for H1B visa. But in general, in order to be qualified for H1B visa, you have to have either a bachelor’s degree or its equivalent.
If your position in specialty occupation does not require a bachelor’s degree, but rather its equivalent, you can prove that you have necessary qualifications if, for instance, you have a certain state license, certification or registration that allows you to be engaged in the specialty occupation in the state of your future employment. Another way to prove it is to demonstrate that you have a combination of education (though not a bachelor’s degree), professional training and progressive working experience which can be considered as an equivalent of a bachelor’s degree or higher in your occupation.
As a rule, three years of work experience or professional training in a specialty occupation can be considered as equivalent to one year of college. It should be noted, that the threshold in this context is a US bachelor degree. If you submit a foreign degree make sure that it corresponds to the necessary US equivalent.
3. Your “specialty occupation” job should be in the area of your specialization as indicated in your degree or diploma.
How can you prove that your degree corresponds to the position you are applying for under H1B visa?
The most common way to do this is to bring a detailed description of your position’s duties, your company’s business and the products/services it produces, and to show how your educational level relates to these descriptions and why at least a bachelor’s degree is required to successfully fulfill your particular duties. You can also add information from other sources about degree requirements for similar positions in your industry and other evidence that your degree is commonly associated with your position.
4. Your employer should pay you the actual or prevailing wage, whichever is higher.
Your employer should pay you a wage not lower than to other employees in a similar position of your profession or occupation in the geographical location of your future employment. Based on the US Department of Labor (DOL) database, your wage will be compared to the “current” or “prevailing” wage in your profession or occupation in a given geographical area to determine your employer’s compliance to this requirement.
More specifically, in order to prove that your employer will pay you a competitive wage, a Labor Condition Application (LCA) should be submitted for your job, certified by the Secretary of Labor. The LCA should state that your employer will be paying you at least the “actual wage” paid to other workers with similar level of education and experience in similar position at your company or “prevailing wage,” whichever is greater. Here, a “prevailing wage” is an applicable wage under the collective bargaining agreement or, if there is no union, an average wage in this position in a given geographical area. Your employer can submit a letter on the company letterhead certifying that you will be paid the appropriate wage when you are employed based on H1B visa.
5. Your application for H1B visa should be within an annual quota (cap) of H-1B visas at the time of filing, unless you are exempt from the numerical limits.
There are 65,000 H1B visas available each fiscal year in the USA. In order to get one (presuming all other requirements are met), an H1B visa should be available for you at the time of filing. Unfortunately, these visas dry up quickly. The fiscal year begins on October 1st and petitioners can apply up to six months before that date, i.e. on April 1st. During the first days of April all H1B visas are usually taken.
At the same time, there are several exemptions to the H1B visa numerical limits. First, 20,000 petitions on behalf of beneficiaries who graduated from US universities with at least master’s degree are exempt from the cap. Second, a foreign worker (beneficiary of H1B visa) will be exempt from the annual quota, if his or her employer (petitioner) is a higher education institution (or its related non-profit organization), a non-profit research organization, or a government research organization.