Helping Qualified Foreign Professionals Work in the United States
The H-1B visa is a type of nonimmigrant visa intended for workers practicing “special occupations,” meaning their job requires some sort of specialized knowledge or skill. Commonly used throughout the United States, especially tech industries, H-1B visas allow employers to bring specialized, highly educated talent into the country to fill roles the marketplace otherwise could not fill.
To foreign nationals seeking to build their careers in the United States, H1-B visas represent a powerful opportunity. Eligible beneficiaries of H1-B even have the option of applying for a green card. However, the number of H1-B visas are capped annually, making the act of pursuing one competitive
At John Nicelli & Associates, we give each case the attention and respect it deserves. Our experienced team have helped many clients from throughout the world pursue work visas for more than 3 decades and have ample experience working through the H-1B process.
Who Qualifies for an H1-B Visa?
Not every type of job qualifies for H1-B visas. The field must be specialized in nature and require a significant level of education or hands-on knowledge to be eligible.
Fields that have historically qualified for H1-B visas include:
- Computer programming
- Software development
- Business management
- Medical and other scientific research
H1-B visas are not necessarily exclusive to the fields listed above, but you should never assume your field or position qualifies. If you have any doubts about your position's eligibility, you should contact our office.
Just because a job is within the category of one of the above industries, does not mean it is necessarily appropriate for an H1-B visa. The specific position must require specialized knowledge or skills, which is typically measured in the level of education or training required.
To be eligible for an H1-B visa, the specialized position requires one of the following from its applicant:
- Bachelor's degree (or higher) from an accredited United States academic institution in the field of the specialized occupation
- Foreign degree that is equivalent to a Bachelor's degree (or higher) in the field of the specialized occupation
- “Equivalent” specialized experience, which typically translates to 3 years of work experience for each year that would otherwise be spent pursuing a Bachelor's degree (12 years in total)
Finally, the employer offering the position must agree to offer a prevailing wage or equivalent wage to the H1-B candidate. This means the employer must pay the foreign national a wage comparable to what someone with similar qualifications would receive in the U.S.
The prevailing wage requirement is meant to prevent employers from hiring international workers for less than they would spend on American candidates. Therefore, it is taken very seriously by the government and can be a source of application rejections.
What Happens After My H-1B Visa is Approved?
After your H-1B visa is approved, you must:
- Schedule an H-1B visa stamping interview.
- Take a picture for your visa.
- Complete the Form DS-160.
- Schedule an appointment with an Offsite Facilitation Center to have your biometrics taken.
- Attend your H-1B stamping interview.
USCIS will mail an approval notice directly to your employer or their employment immigration lawyer. They should provide you a hard copy of the approval as well. When you receive the approval notice, it is advisable to schedule an H-1B visa stamping interview at the nearest U.S. Embassy or Consulate. Be aware that there is a chance that the consular officer will refuse to give you the stamp and instead issue a 221(g), which is a temporary refusal notification. This means that the officer will require more information from you before issuing the visa stamp. Because there is a possibility of refusal, be sure to schedule your visa stamping interview as soon as possible so you have time to submit additional documents if needed.
Get Help With H1-B Visas
Successfully applying for an H1-B visa requires working in concert with your prospective employer. It can be a complex, overwhelming process, so retaining the services of a skilled lawyer can help expedite the process and increase your odds of success.
First, you will need to receive and accept a qualifying offer of employment from a U.S. employer. You cannot apply for an H1-B visa if you are merely looking for work. You must already have a job offer. You will also need to meet the education requirements at the time you file your application, and the employer will need to guarantee a prevailing wage.
Your employer will have to sponsor your H1-B visa, so it is critical they understand your situation before you receive an offer of employment. Do not assume an employer will be prepared, willing, or able to sponsor you. With that said, many larger employers are familiar with H1-B visas, especially in specialized fields, and will be aware of your intentions.
The next few steps will be primarily undertaken by your employer. They will need to file a “Labor Condition Application” form (LCA) with the U.S. Department of Labor. This document reviews the position you are being hired for, its location, and its pay. Your employer will also confirm you will receive the prevailing wage, which the Department of Labor can dispute, if they see fit. You and your legal representation will likely need to work with your employer to make sure all information on the LCA is accurate.
Your employer will then have to register you for the H-1B visa selection lottery. If you are randomly selected, then, the employer will be required to submit Form I-129, the Petition for a Nonimmigrant Worker. This will include your resume, documentation proving your level of education, your employment agreement, and a letter of support from the employer. You will then often face a wait time of several months. If the position needs to be filled immediately, an employer can pay to expedite petition processing.
Finally, once your petition has been approved, you will need to attend an interview at the United States consulate or embassy to process your visa in your home country, after which you will be cleared to travel to the U.S. and start work. This process usually only takes a few days. If you are already in the U.S. and remain legally in status at the time of filing your H1-B visa, you may also be eligible to change status without having to leave the United States to attend an interview at the American embassy or consulate abroad.
Benefits on H1-B Visas
If your application is accepted and you receive your H1-B visa, you will be authorized to travel to the United States and work in the specialized position you were sponsored for. Your H1-B visa lasts for a period of 3 years, and the process to renew for another 3 years (for a total of 6) is fairly straightforward.
Because H1-B is a “dual intent” visa, you are permitted to enter the country under the assumption you could choose to try and permanently stay. In other words, you are able to pursue a green card, which grants you lawful permanent residency, once you enter the country with your H1-B visa. Many H1-B beneficiaries utilize this path to remain in the country once their work visa term ends.
An H1-B visa holder can also potentially bring their spouse and unmarried children under 21 into the country under H-4 nonimmigrant classification. They can also apply for authorization to be employed.
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