How to Meet the H1B Visa Work Requirements
Meeting the H1B Visa Requirements
The H1B program continues to be oversubscribed so it is important to ensure that all relevant eligibility criteria are met to improve the prospects of making a successful application, such as satisfying the H1B visa work requirements.
What is the H1B visa?
The H1B Speciality Occupation visa is for US businesses and organisations to employ graduate level foreign nationals in speciality occupations. It is a non-immigrant, temporary worker visa which permits qualifying non-US nationals to come to the USA to perform qualifying roles.
As an H1B status holder, you may stay in the US for up to 3 years, with the option of extending your stay for a further three years provided you continue to be employed in a qualifying role by an authorised employer.
Should you remain and work in the US on an H1B basis for the full six years, you may become eligible for a Green Card and permanent residency.
H1B visa work requirements: the H1B role
What is a ‘Speciality Occupation’?
Speciality occupations are those which require the theoretical and practical application of highly specialised knowledge in the related industry.
A speciality occupation requires a bachelors or higher degree, or an equivalent qualification combined with the relevant specialist expertise and work experience.
Speciality occupations commonly fall into the following areas:
- computer related
- architecture and surveying
For a job to be H1B eligible, it must meet one of the following conditions:
- A bachelors or higher degree, or equivalent, is the minimum entry requirement for the job.
- It must be the norm for that specific job that a degree is required.
- The job can only be filled by a person who has a degree because the nature of the job is so complicated or unique.
- A degree or equivalent is required by the employer for any individual to be recruited for and to fulfil the job.
- The knowledge level that is generally associated with a person who holds a bachelors degree or higher degree is required because the duties of the job are so complex and specialised.
H1B roles must carry a wage that is equivalent to that of similarly qualified and specialist roles, or more than the wage of similarly qualified and specialist roles where the higher wage is the norm in the local area. Alongside this wage, an H1B role should carry the same work benefits as are made available to similar US workers.
The working conditions of an H1B role should not have a detrimental effect on similarly employed workers, and the H1B role must not be applied for during a time of strike, lockout or other work stoppage.
Computer programming roles
In 2017, USCIS changed their rules on whether the role of computer programmer could be seen as a specialist occupation.
As H1B jobs generally require a degree or equivalent qualification and work experience, USCIS felt that entry level computer programmers might not necessarily meet this requirement.
The current position (as at July 2018) is that for a computer programmer to be eligible for an H1B visa, they must supply evidence that their education and level of expertise is of a level deemed by USCIS to be sufficient for a specialist occupation
H1B visa work requirements: the H1B applicant
For an individual to be eligible as an H1B status worker, they must have an offer of employment from a US employer in respect of an eligible role and at least one of the following:
- US bachelors or higher degree in the related speciality occupation from an accredited US educational institution
- Equivalent foreign degree in the speciality occupation
- Unrestricted state licence, registration or certification which allows employment in the speciality occupation in the state where the job is located
- Education, training or experience in the relevant speciality equivalent to a degree and recognition as having a suitable level of expertise in the speciality
How to apply for an H1B Visa
With many more applications being made each year than visas are available for, the H1B visa application process looks for evidence that both the individual and the role meet the H1B visa work requirements.
Labor Condition Application (LCA)
Firstly, the employer must submit a Labour Condition Application (form ETA-9035) to the United States Department of Labor to be certified.
This document states the employer’s agreement to pay the employee a wage that is not less than that paid to similarly qualified workers, or where it is more, to pay a wage that is generally accepted for such a job locally.
The LCA must also confirm the employer’s agreement that the employee’s working conditions will not have a negative or detrimental effect on other similarly employed workers and that at the time of filing the LCA, there is no strike, lockout or other work stoppage in place.
Non Immigrant Worker Petition (form I-129)
Once certification of the Labour Condition Application (LCA) has been granted, the employer should submit a Non immigrant Worker Petition (form I-129), accompanied by the certified LCA form, to the relevant USCIS Service Centre.
The I-129 form should be accompanied by evidentiary documentation to support the application. Depending on the related job and worker, this documentation could include:
- the certified LCA as proof that this has been applied for and granted by the Department of Labour
- proof that the job qualifies as a speciality occupation
- proof of the employee’s eligibility, such as:
- a copy of the employee’s US bachelors degree or higher degree
- a copy of the employee’s foreign degree and proof that it is equivalent to the US degree
- proof of education, specialised training or work experience that are equivalent to the relevant US degree
- copy of an unrestricted state licence, registration or certification to work in the speciality occupation in the state where the employment is located
- copy of a written employment contract between the employer and the employee, or a summary of an oral agreement of the same
If you can successfully show that the applicant and the role meet the H1B work requirements and you are selected from the lottery, the employee may apply for their visa through the Online Non-immigrant Visa Application system (form DS-160) and attend an interview at their local US Embassy or Consulate.
Who pays for the H1B Visa?
The employer is legally required to pay the H1B petition fees, while the employee is responsible for paying their own visa fees and those of any of their dependants. The employer may not offset any of the H1B petition fees against the employer’s wages.
Should the premium processing option be taken, this may be paid by either the employer or employee.
The H1B petition fees are:
- Basic filing fee of $460
- ACWIA fee (American Competitiveness and Workforce Improvement Act of 1998) of $750 for companies with 25 or fewer employees or $1,500 for companies with more than 25 employees
- Fraud Prevention and Detection fee of $500
- Public Law 114-113 fee of $4,000 where the company has more than 50 employees and over 50% of those are employed through an H1B or L1 visa.
Organisations that are exempt from paying the ACWIA fee include:
- Higher education institutions
- Non profit entity related to or affiliated with higher education institution
- Non profit research organisation
- Governmental research organisation
- Primary educational institution
- Secondary educational institution
- Non profit entity engaging in curriculum related clinical training programmes for students
Do you have a question about H1B Visa Work Requirements? NNU can help!
NNU Immigration are dedicated US immigration attorneys. We can guide you through the H1B application process, inluding advice on qualifying work requirements. For advice about an H1B application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.