What is an H-1B Visa and Who Qualifies?

The H-1B visa is one of the most sought-after work visas in the H class of nonimmigrant visas. It is intended for foreign workers who come to the United States to temporarily perform services in a specialty occupation for a U.S. employer. The key factors for eligibility include:

1. Specialty Occupation: The job must qualify as a “specialty occupation,” meaning it typically requires at least a U.S. Bachelor’s degree (or its foreign equivalent) in a specific field. To determine whether a specific degree is required for a job, authoritative sources recognized by immigration authorities are consulted. For example, it’s well-established that a Financial Analyst role requires a Bachelor’s degree in Business Administration or a related field. If there is ambiguity about whether a specific degree is required, the Immigration and Nationality Act (INA) provides alternative methods to demonstrate that the job does indeed require such qualifications.
2. Worker Qualifications: While a Bachelor’s degree in the relevant field is typically required, there are exceptions. For those with an Associate’s degree or no degree at all, equivalent qualifications can be demonstrated through professional experience that compensates for the lack of formal education. Additionally, if the applicant’s degree is not directly related to the job offered, an experienced immigration attorney can help resolve such discrepancies.
3. U.S. Employer: The petition must be filed by a U.S. employer, which is defined as a company possessing a tax ID number. The employer must prove its ability to offer the job by demonstrating that it can pay at least the prevailing wage and that its business operations justify the need for the position. For instance, a small computer repair shop may struggle to justify hiring a market research analyst.

When Can I Obtain an H-1B Visa?

H-1B visas are subject to an annual cap, with the visa issuance period starting on October 1st. The earliest filing date for an H-1B visa is April 1st. In recent years, the quota for H-1B visas has been filled within the first week of April, although there have been exceptions, such as in the 2010 fiscal year when visas remained available until December. Certain exceptions to the quota do exist.

What Are the Advantages and Limitations of an H-1B Visa?

Advantages:

• Dual Intent: The H-1B visa is considered a “dual intent” visa, meaning that you can have an immigrant visa petition (such as a green card application) pending while still applying for H-1B extensions. This makes the H-1B visa an excellent option for those looking to transition to permanent residency.
• Extension Options: While you can remain in H-1B status for up to six years, certain conditions allow for extensions beyond this limit, particularly if an employment-based immigrant application process is underway.

Limitations:

• Dependent Work Authorization: Dependents of H-1B visa holders, who enter the U.S. on H-4 status, are not eligible to obtain work authorization.
• Limited Availability: H-1B visas are not available year-round for most applicants, as they are subject to an annual cap.

What is the Attorney’s Role in an H-1B Petition?

Successfully documenting eligibility for an H-1B visa, both from the employer’s and the employee’s side, requires careful attention to detail. Even when all necessary documents are provided, they must be organized in a way that clearly leads the immigration officer to a favorable decision. This is especially important when the job in question may not clearly qualify as a “specialty occupation” or when the employee does not have typical qualifications. An experienced immigration attorney can play a crucial role in presenting a strong, convincing case.

Furthermore, employers have specific legal obligations, including maintaining a properly prepared public access file for every H-1B petition filed. Failure to meet these requirements can result in audits, fines, and restrictions. To protect clients from liability, an attorney ensures that all legal obligations are met and that the case is filed correctly, including using the appropriate job title and occupational code.