H-1B Visa Requirements

Posted on January 17th, 2013, by Livesay & Myers, P.C. in Immigration Law. Comments Off on H-1B Visa Requirements

H-1B Visa RequirementsAs the traditional holidays are behind us, you may find yourself anxiously awaiting the upcoming H-1B season. H-1B visas provide a way for foreign nationals to live and work in the United States, for a temporary period, in a specialty occupation. Even in the current job market, these visas remain in high demand. This demand makes proper filing of an H-1B petition all the more important.

The term “H-1B filing season” stems from the limited supply of the visas vs. the overwhelming demand. The current cap on the number of H-1B visas that may be awarded each year is 65,000. Some visas are set aside from this allowance for treaties involving Chile and Singapore, bringing the total of available visas to 58,200. The first day that H-1B petitions are considered each year is April 1st, which marks the beginning of the filing season.

On April 1, 2007, USCIS received 133,000 petitions. In that year, the H-1B visa cap was reached after just two days! In 2008, the available number of H-1B visas lasted until just April 7. In 2012, the H-1B cap was exhausted on June 11. Given the small window to have your petition considered, ensuring that the requirements are met is all the more important, as second chances will likely not be available.

H-1B visas are for “specialty occupations.” When considering whether or not your open position could be considered a specialty occupation, two things to look for are (1) whether a Bachelor’s degree (or higher) is required for the position and whether the position normally requires a bachelor degree (or higher) by either the same employer or the industry as a whole, and (2) whether the nature of the specific duties of the position are so specialized and complex that the job could only be performed by someone who has achieved a bachelor’s degree. Many professions may qualify, including for example accountants, engineers, and chefs.

The petition for the H-1B visa must establish that the employee meets the education qualifications for the open position. A potential employee will need to establish successful completion of the educational requirements or their equivalency. This could be done through a combination of education and experience; in some cases, experience alone may satisfy the education requirements. When understanding whether experience is sufficient as a substitute for education, use the “3 to 1 rule.” The 3 to 1 rule states that each year a candidate is lacking of formal education may be satisfied with three years of work experience.

In addition to the position and employee requirements, the H-1B visa petition must also meet certain wage requirements. The Department of Labor (DOL) requires that the employer pay the employee 100% of the prevailing wage for the H-1B visa position. This is to protect American workers, ensuring that employers do not simply use the H-1B visa to bring in cheaper labor from abroad. The “prevailing wage” is the standard salary based on the minimum qualifications for the position. This will either be based on a collective bargaining agreement, if applicable, or the mean wage of workers similarly situated in the same geographic area of the position. In order to ensure that the wage criteria are satisfied, the petitioning employer must have a Labor Condition Application (LCA) approved through the DOL prior to filing the H-1B petition. Certain notice requirements must also be satisfied with the filing of the LCA. Approval of the Labor Condition Application typically takes around 7 business days.

An H-1B visa is only available for a maximum of six years. The original classification is granted for three years and an additional three year extension is then available. After spending six years in the U.S., the foreign national must leave for one year before becoming eligible for another H-1B visa to re-enter the United States. However, if a Labor Certification Application is filed and pending for a minimum of 365 days before the expiration of the six year stay, an H-1B extension will be issued without the foreign national having to leave the U.S. for the one year period.

Upon receiving their H-1B visa, the foreign national is able to travel to the United States, start work at their new job, and eventually pursue Lawful Permanent Resident status (a “green card”) in the U.S.

If you are an employer with an open position in a qualifying specialty occupation, have a prospective employee who meets the educational requirements, and you are able to pay the DOL prevailing wage, then you are likely eligible to file for an H-1B visa.

The immigration lawyers at Livesay & Myers, P.C. represent clients in Manassas, Fairfax and throughout Northern Virginia, Maryland and the District of Columbia. If you have immigration questions, contact us to schedule your initial consultation with an experienced immigration attorney today.

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Livesay & Myers, P.C. is a law firm with offices in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia. Our attorneys practice family law, criminal defense and immigration law.

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