For individuals who have a bachelor’s degree or its equivalent, or higher degree and a job offer that normally requires a bachelor’s degree or higher as a minimum requirement, the H-1B temporary work visa may be a good fit.

Keep in mind, the job itself must require a bachelor’s degree or higher in a specialized field. You must then have that degree to qualify for H-1B status.

What is a “specialty occupation”?

• 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. 

The U.S. Employer must file the petition.  Before filing with the USCIS, the Employer must file a Labor Condition Application with the U.S. Department of Labor (DOL).  The LCA is the Employer certifying under penalty of perjury that it will pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. The employer must also certify that it is not displacing any U.S. workers to hire the H-1B applicant, and that there are no strikes or other work stoppages in the occupation in which the H-1B applicant will be employed. The certified LCA should be submitted with your H-1B petition to the USCIS.

There is a quota for H-1B visas:  65,000 per fiscal year for positions based upon a Bachelor’s degree or its equivalent and 20,000 for positions based upon a U.S. Master’s degree or higher (aka “advanced degree exemption”).

Beneficiaries whose are sponsored by qualified institutions of higher education, related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization may be exempt from the quota.

An H-1B visa will enable you to work for the petitioning employer for a total of six years continuously. Spouses and minor children of an H-1B are eligible for H-4 dependent status but are not eligible for employment authorization.

The H-1B has become subject to stricter and stricter scrutiny by USCIS adjudicators.  Getting past the lottery is the first hurdle – to make it to the finish line, you need an experienced immigration attorney.  Contact our office to see how we can help you.