H-1B Visa Classification
Our attorneys represent U.S. employers that sponsor foreign nationals to work full-time or part-time in the United States under the H-1B nonimmigrant visa classification. We advise corporate and institutional clients on foreign worker qualifications for the H-1B classification, obtaining a certified Labor Condition Application (LCA), the H-1B petition process itself, and how U.S. corporations and institutions can sponsor their selected foreign nationals for H-1B status.
The H-1B specialty occupation nonimmigrant work classification is authorized by the Immigration and Nationality Act. It is one of the main avenues that employers use when hiring and employing foreign workers in the U.S. H-1B sponsorship requires that the employer and employee meet several criteria. To petition for the H-1B visa classification:
- The petitioner must be a U.S. employer (H-1B Petitioner Requirements).
- The proposed U.S. position must be eligible (The Nature of H-1B Jobs).
- The worker must be eligible (Qualifications of the H-1B Worker).
- H-1B visas must be available (The H-1B Cap).
- The petitioning employer must get an LCA (Labor Condition Application).
- The H-1B petition must be filed with and approved by the United States Citizenship and Immigration Services (USCIS).
The Specialty Occupation Worker Visa
U.S. employers may sponsor foreign nationals for H-1B status if the employer offers the worker a job in the U.S. that requires a bachelor’s or higher degree in a field related to the job, and the worker holds at least the minimum education required. Unlike most other visa categories, the H-1B classification applies broadly to different types of Employers, Industries, Foreign nationals, and Jobs.
H-1B Petitioner Requirements
Under H-1B regulations, the party petitioning for an H-1B visa (known as the H-1B petitioner) must be a U.S. employer. A U.S. employer may be a Person, Firm, Corporation, Contractor, Association, or Other Organization. Foreign employers cannot directly file H-1B petitions with the USCIS for their workers in the U.S. However, foreign employers may use a U.S. agent to file petitions on their behalf.
The Landscape of H-1B Jobs
Specialty occupations include professional occupations in the following fields:
- Physical science
- Social science
- Medicine and health
- Business specialties
- The arts
Education Required for H-1B Jobs
To be eligible for H-1B status, the position offered to the foreign worker must have a minimum educational requirement of a bachelor’s degree in a related field. The minimum education requirement for H-1B-eligible jobs may be:
- Normal for entry to the position,
- Common to the industry in parallel positions at organizations like the petitioner,
- Visiting with friends or relatives
- Necessary for the particular position because of its highly specialized, complex, or unique nature, which makes it so that it can only be performed by someone with the required degree, or
- Normal for the employer hiring in the particular position.
Our attorneys counsel U.S. companies and institutions about the best way to prepare an H-1B petition that clearly and specifically describes the minimum academic credentials for the offered position to show that the position meets H-1B requirements.
Qualifications of the H-1B Worker
To qualify for H-1B status, foreign workers must demonstrate they meet the minimum academic credentials of the offered position. Acceptable documentary evidence includes:
- A US bachelor’s or higher degree from an accredited college.
- A foreign degree that is equivalent to a US bachelor’s or higher degree.
- Education, training, or progressively responsible experience, or any combination of education, training, and experience, in the specialty that is equivalent to completing a US bachelor’s or higher degree in the required field.
An equivalency based on the combination of education, experience, or training may be proved by:
- An evaluation by an official with authority to grant college-level credit in the specialty,
- Successfully completing a recognized college-level equivalency exam in the specialty,
- An evaluation by a reliable credentials’ evaluation service,
- Certification by a nationally recognized professional association that regularly certifies competence in the specialty, or
- A determination by USCIS that submitted evidence of the worker’s skills and knowledge are sufficient to show that the worker has the equivalent degree.
Our attorneys will work with you to gather the most compelling documentary evidence to communicate to the USCIS that you possess the above required academic credentials to assume the proposed temporary U.S. position.
*Note: If a license is required to work in your particular occupation, please let our attorneys know so that we can counsel you on additional requirements as it relates to the occupational license.
The limitation on the availability of H-1B visas is known as the H-1B cap. The government’s fiscal year runs from October 1st to September 30th. Each year, there is a total supply of 85,000 new H-1B visas, which is divided in the following manner:
- Generally, the number of people who can be granted new H-1Bs each fiscal year is limited to 65,000. Of that number, 6,800 visas are reserved for citizens of Singapore and Chile, who may be granted H-1B1 status under free-trade agreements with those countries.
- There is an additional pool of 20,000 new H-1Bs available only to foreign nationals who have earned a US master’s or higher degree (called the master’s cap, or the advanced degree exemption).
Impact of the Cap on H-1B Sponsorship:H-1B visas are popular with U.S. employers because of their broad applicability. The limited availability of new H-1B visas each year impacts the ability of employers to sponsor workers for H-1B status, since the supply of new H-1B visas is routinely exhausted before the end of each fiscal year. This occurs during both economic downturns and periods of growth.
Employers petitioning for an H-1B worker under the master’s cap must ensure that the US education institution conferring the beneficiary’s master’s or higher degree was appropriately accredited at the time the degree was conferred.
*Note: Petitions filed by government research organizations, institutions of higher education, nonprofit entities related to institutions of higher education, or nonprofit research organizations are exempt from the H-1B cap.
H-1B Cap-Gap for Foreign Students
Many of the workers sponsored for new H-1B visas are foreign students who earned a degree in the U.S. The employment authorization documents (EADs) of many foreign students expire between May and August, because of the regulations controlling the issuance of those documents. Since many H-1B petitions may be filed in April with an October 1st effective date, these students have a gap between the end of their student employment authorization and the start of their H-1B status. This is commonly referred to as the H-1B cap-gap.
To fill this gap, the immigration regulations permit the automatic extension of status and employment authorization for foreign students who:
- Are in valid F-1 student status,
- Are the beneficiary of a timely filed H-1B petition requesting a change of nonimmigrant status, and
- The H-1B petition validity date is October 1st of the following fiscal year.
Please note that the automatic “cap-gap” extension, is canceled if the H-1B petition is rejected, denied, or withdrawn. Additionally, students granted cap-gap extension of status and employment authorization do not have a valid EAD, and therefore may not travel internationally in their student status during the cap-gap extension period. Students with cap-gap extensions who leave the U.S. must wait until they can obtain an H-1B visa to return to the U.S. for employment. Students may be able to return to the U.S. if they have another valid visa, but they would not be able to work unless the alternative visa category provides employment authorization.
Duration of H-1B status
Employers filing cap-subject H-1B petitions typically must request less than the maximum 3-year duration permitted for most new H-1Bs. Often that is because the LCA is valid to a date that is earlier than the maximum allowable H-1B, due to several factors.
Labor Condition Application
U.S. employers must receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL) before they may file an H-1B petition with the USCIS. Our attorneys will assist you in obtaining the certified LCA, which identifies the job offered to the foreign worker and the locations where the work is performed. This can be a complex process, requiring an understanding of when the LCA may be filed before employment begins, and considering DOL processing times, which can impact the filing of your nonimmigrant visa petition. Our attorneys also counsel its institutional and corporate clients about the four required attestations (Wages, Working Conditions, No Labor Dispute, and Notice) that must be made on the LCA. We ensure that our clients are knowledgeable about the documents they must retain in public access evidencing they satisfied the attestations.
Once we receive a certified LCA, our attorneys will prepare a comprehensive and highly personalized H-1B petition to file with the USCIS.