What are the H1B Visa work requirements?
To be eligible for the US H1B program, you must show that you meet the H1B visa work requirements and qualify as a specialty worker.
The H1B visa continues to be highly oversubscribed. If you are selected in the H1B visa lottery, it will be important to ensure your petition is comprehensive and fully compliant with the rules, and that you provide sufficient evidence to show you meet the H1B visa requirements.
The H1B application process requires workers and the employer/sponsor to work closely to ensure deadlines are met, fees are paid and all the required information is provided on time and in the correct format.
In this article, we explain the eligibility requirements that must be met for an H1B visa to be granted.
What is the H1B visa?
The H1B Specialty Occupation visa is for US businesses and organisations to employ graduate-level foreign nationals in specialty occupations. It is a non-immigrant, temporary worker visa that permits qualifying non-US nationals to come to the USA to work in qualifying roles.
As an H1B status holder, you may stay in the US for up to 6 years. 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.
H1B visa cap
There is an annual cap on the number of H1B visas that can be issued. 85,000 are made available each year, of which only 65,000 are for overseas workers in specialty level occupations with at least a bachelors degree, and 20,000 are for specialty workers with an advanced degree from a US academic institution
These levels are generally far lower than the number of registrations.
H1B visa work requirements
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.
The role is a ‘specialty occupation’
Specialty occupations are those which require the theoretical and practical application of highly specialized knowledge in the related industry.
A specialty occupation requires a bachelors or higher degree, or an equivalent qualification combined with the relevant specialist expertise and work experience.
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 specialized.
If you do not have a bachelors degree or higher you may be able to show degree equivalence through work experience and/or other qualifications.
Specialty occupations commonly fall into the following areas:
- architecture and surveying
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.
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 specialty occupation from an accredited US educational institution.
- Equivalent foreign degree in the specialty occupation.
- Unrestricted state licence, registration or certification which allows employment in the specialty occupation in the state where the job is located.
- Education, training or experience in the relevant specialty equivalent to a degree and recognition as having a suitable level of expertise in the relevant specialty.
How to apply for the H1B visa
Applications for H1B visas are accepted during a limited, annual window. This means employers and workers must be organized in ensuring they meet the deadlines.
The registration window generally opens during April. Successful H1B applicants are not allowed to start work until October 1st of the same year.
The first stage in making an H1B application is to file an electronic registration during the H1B window. This is usually during April each year. Once the window closes, if the number of registrations exceeds the number of H1B cap visas available, a random process is used to select registrations which are then invited to submit a full petition within a window of usually 30-days. This means the visa applicant and their sponsor must act quickly to compile and submit a comprehensive application.
Labor Condition Application (LCA)
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 specialty 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 specialty 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.
H1B visa costs
The employer is 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:
- Electronic registration fee: $10
- Basic filing fee of I-129 form: $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:
- 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
NNU Immigration are dedicated US immigration attorneys. We can guide you through the H1B application process, including advice on qualifying work requirements.
Given the competitive nature of the H1B route, we can also advise on the availability of alternative immigration routes which may be applicable depending on your circumstances, such as the L-1 visa or E-2.
For advice, contact us.
This article does not constitute direct legal advice and is for informational purposes only.