H-1B

visas for professionals with specialty occupations

H-1B visas are for the employment of foreign workers in specialty occupations that require theoretical or practical application of a body of highly specialized knowledge.  H-1Bs are specific to the sponsoring employer, location, and job. Therefore, if any of those change materially, an amended H-1b petition is required.   

A prospective employee must meet one of the following criteria to qualify for the H-1B:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university

  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation

  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment

  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Does my job qualify for an H1B?

An H-1B position must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position

  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree

  • The employer normally requires a degree or its equivalent for the position

  • 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.

WHAT IS THE DIFFERENCE BETWEEN AN INITIAL H-1B AND AN H-1B TRANSFER?

If the foreign national already holds an H-1B, then the transfer process is relatively simple. If the individual holds H-1B status pursuant to a petition by Corp. A, Corp. B can petition to have that existing status changed over to Corp. B. The foreign national is not required to leave the U.S. to activate the transfer, but can do so if desired. If the foreign national does not yet have H-1B status, s/he will have to enter the H-1B lottery unless the employer is CAP except. Universities and related nonprofit entities, nonprofit research organizations, and government research organizations are exempt from the CAP.

WHAT IS THE H-1B LOTTERY?

Each fiscal year, USCIS is able to issue 85,000 new visas. Because there are usually – and especially in good economic times – more individuals seeking H-1Bs than there are H-1Bs available, H-1B selection becomes a lottery. Although there was discussion of prioritizing higher salaries in the selection process, that idea was scrapped. However, individuals who received a Master’s degree or higher in the U.S. have a better chance of selection than those who didn’t because they are prioritized. For an idea of what these numbers look like, in Fiscal Year 2022, there were 308,613 registrations for just 85,000 H-1B visas. In recent years, USCIS has conducted two drawings in the lottery, one in the spring, and a second in late summer.

ARE YOU LOOKING TO HIRE A FOREIGN NATIONAL?

It is especially important to work with immigration counsel when seeking the H-1B visa due to the precise timing required and the limited supply of H-1Bs. The slightest error in the petition can lead to rejection by USCIS, which can mean the employer and employee need to wait a whole year to try again.

There are a number of visa options to pursue when hiring someone special from outside the U.S. We’ve put together a checklist of questions that can help with your initial guidance. If you need to hire a worker from a foreign country, please read this article and give an expert H1B lawyer a call.