The H-1B visa is a highly sought-after pathway for foreign professionals to work in the United States. It allows employers in the country to sponsor skilled workers in “specialty occupations” temporarily, typically with the option to extend and potentially transition to permanent residency.
However, sailing across the H-1B visa process is not easy. This blog explains the requirements and eligibility criteria for the H-1B visa, providing a comprehensive overview for potential applicants and employers.
Who is eligible for an H-1B visa?
To qualify for an H-1B visa, the individual’s chosen occupation must fall under the category of a “specialty occupation”. This means it requires:
- Advanced knowledge: The ability to apply a complex body of highly specialized knowledge in both theoretical and practical ways.
- Minimum educational attainment: A bachelor’s degree or higher in the specific field, or its equivalent, as the minimum requirement to enter the occupation in the United States.
Additionally, the position must meet one of the following criteria to be considered a specialty occupation:
- A bachelor’s degree or higher is typically the minimum requirement for parallel positions in the industry or similar organizations.
- The job demands such a high level of complexity or uniqueness that it can only be performed by someone with a degree.
- The employer typically requires a degree or its equivalent for the position.
- The specific duties involved are so specialized and complex that the knowledge needed to perform them is usually associated with a bachelor's degree or higher.
How do you meet the educational requirement?
To qualify for performing services in a specialty occupation, one must fulfill one of these criteria:
- Hold a U.S. bachelor’s degree or higher: This degree must be relevant to the specialty occupation and from an accredited college or university in the United States.
- Hold an equivalent foreign degree: This degree must be recognized as equivalent to a U.S. bachelor’s degree in the same field, issued by an accredited institution.
- Have a valid license or certification: Possess an unrestricted state license, registration, or certification that allows one to fully practice the specialty occupation in the state of intended employment.
- Demonstrate equivalent experience: Possess education, specialized training, and/or progressively responsible experience equivalent to a U.S. bachelor’s degree in the specialty occupation, along with recognition of one’s expertise through relevant positions.
Additional considerations
- Labor Condition Application (LCA): The employer must obtain an LCA from the U.S. Department of Labor (DOL), verifying they will offer the prevailing wage and working conditions for the position.
- Cap & Selection Process: Due to annual numerical limitations (65,000 visas, with an additional 20,000 reserved for applicants holding a U.S. Master’s degree or higher), a lottery system selects a portion of applications within the first few weeks of filing. Selected applicants are invited to proceed with filing the full H-1B petition.
Note: Being selected in the lottery doesn’t guarantee visa approval. Each petition undergoes individual scrutiny by USCIS based on eligibility criteria and supporting documentation.
Who Qualifies for Cap-Exempt H-1B Status?
The following entities can employ H-1B workers without being subject to the annual cap:
- Institutions of higher education: Accredited colleges and universities in the United States fall under this category.
- Non-profit research organizations: Entities primarily engaged in fundamental or applied research activities qualify, excluding government-owned corporations.
- Government research organizations: These include federal, state, or local government agencies directly involved in research.
- Non-profit entities affiliated with institutions of higher education: Organizations closely related to accredited colleges or universities, with shared missions and substantial control by the institution, can benefit from this exemption.
H-1B Licensing
For certain professions, holding a state or local license is crucial for H-1B beneficiaries to practice their specialty fully. If a license is mandatory in the desired state of employment, obtaining it before the H-1B petition approval is usually necessary, not just during filing. Refer to 8 CFR 214.2(h)(4)(v)(A)–(B) for details.
Note: USCIS will generally issue a request for evidence (RFE) of the required license if it's missing during the application process.
Key Steps in the H-1B Visa Process
- Submission of LCA application to the DOL and its certification
- Employer registers the employee’s information during the designated registration period.
- Selected applications proceed to the full petition stage.
- Employer files Form I-129 - Petition for Nonimmigrant Worker with USCIS.
- Payment of filing fees and supporting documentation submission.
- USCIS reviews the petition and conducts background checks.
- Decision communicated to the applicant and employer.
Timeline and Processing
The H-1B visa processing timeline can vary depending on several factors, including USCIS workload, individual case details, and potential requests for additional evidence. Generally, it can take several months to receive a decision after the petition is filed.
For quicker processing, the employer can pay an additional Premium Processing Fee to USCIS for processing in 15 days.
Summing Up
The H-1B visa, while offering a coveted path for qualified foreign professionals to contribute their skills and build careers in the United States, demands thorough preparation and expert guidance. Understanding the eligibility criteria and the competitive application process, and anticipating potential challenges are crucial before embarking on this journey.
Consulting with an immigration compliance expert is highly recommended to ensure legal compliance and maximize your chances of success. Learn more about OnBlick’s H-1B case management services here.
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