How can I qualify for H-1B visa status?

Q: How can I qualify for H-1B visa status?

A:  H-1B visas are available to foreign professionals who are interested in working in the United States. An offer of employment from a U.S. company is necessary before one can apply for H-1B status.

Under the current law, there are a limited number of H-1B visas offered per year, and they have already all been allocated for 2013. However, if time allows, you could potentially apply for an H-1B visa for next fiscal year. To do so, you would want to file your petition during the first five business days of April 2014 when the H-1B cap opens for the next fiscal year. If you receive an H-1B visa number, and if your company’s petition is subsequently approved, you can begin working pursuant to H-1B visa status on October 1, 2014.

The four main criteria for H-1B eligibility are:

1)      The foreign professional must have a bachelor’s degree or the equivalent of a U.S. bachelor’s degree, either based on foreign education, or a combination of education and work experience.

For H-1B’s, the government considers three years of professional level work experience to be the equivalent of one year of higher education. Since a bachelor’s degree is a four-year degree, 12 years of professional level work experience would be considered the equivalent of a bachelor’s degree if relying on experience alone.

“Equivalent” of a bachelor’s degree also may include foreign degrees in higher education which may actually not be called ‘bachelor’s degrees’ but may still qualify. Opinions can be sought from experts who can determine if a foreign degree is the equivalent of a US bachelor’s degree.

2)      Foreign national’s professional degree must relate to the position being offered.

If you have a degree in history, but the position being offered by the U.S. company is that of a financial analyst, it would be difficult to successfully argue that your degree is related to the position being offered, and you would probably not be eligible for an H-1B visa based on that offer of employment. However, if you have a degree in business, and are offered a marketing position, it is much easier to prove that your degree relates to the position being offered. Another example is a degree in computer sciences for someone who is being offered the position of software engineer.

3)      The job duties must primarily be professional level responsibilities, which could only be performed by someone with a specialized bachelor’s degree, or its equivalent.

The government often looks to industry standards to determine if the job being offered is one which generally requires at least a specialized bachelor’s degree. For example, it is common practice for professionals working in marketing/business to have a degree in a related field. On the other hand, a job in retail sales generally does not require a degree, so even if you have a degree, you will probably not be approved for an H-1B for a position in retail sales.

4)      Foreign professional must be paid the prevailing wage.

The U.S. government, specifically, the Department of Labor, monitors the salaries that employees in specific fields within their region earn, and with that data, determines the “prevailing wage,” which basically means how much a U.S.  employee doing a certain job will earn for his/her duties. Your employer must pay you at least the prevailing wage for the position being offered, and submit information about the company and your salary to the Department of Labor for approval of a labor condition application before your H-1B visa petition can be approved.

These are just some of the criteria for eligibility. The government considers other factors as well, such as the size of the company (number of employees), the main activities of the company, etc. For these reasons, it is a good idea to consult with a qualified immigration attorney to help determine if you qualify for an H-1B visa and then if you potentially do qualify, to help you/your sponsoring employer with the petition process.

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