by Enoch Pei
What is H-1B?
H-1B is a nonimmigrantion visa classification that allows a foreign national to enter the United States to work for a period of up to six years. It is available to foreign nationals being offered employment in a specialty occupation (or as a fashion model of distinguished merit and ability).
How Do You Apply?
In seeking H-1B status, the employer must file an I-129 – Petition for a Nonimmigrant Worker – with the U.S. Citizenship and Immigration Services. Complementary instructions to help fill out the I-129 can be found here . But prior to filing the petition with the USCIS, the employer must obtain an ETA 9035 – Labor Condition Application for Nonimmigrant Workers – with the U.S. Department of Labor. Complementary instructions to complete the ETA 9035 can be found here.
(Other additional forms and documents may be necessary, depending on an individual case basis)
Do You Qualify?
In order to qualify for H-1B status, there are several requirements that need to be met.
There must be an employer-employee relationship with the petitioning U.S. employer
This relationship is generally determined by whether the employer is in control of the H-1B worker’s hire, pay, and overall supervision
An employer can be a person, firm, corporation, or other association or organization that engages with its employees’ work as mentioned above
The job of the H-1B worker must qualify as a specialty occupation
Typically, a bachelor’s degree is the minimum requirement for the qualification of a specialty occupation
Occupation of the H-1B worker must be related to the worker’s field of study.
There are exceptions to those who do not have a bachelor’s degree
These include specialized training or experience that is considered equivalent to the necessary degree required for occupation
The worker must be paid at least the actual or prevailing wage for the occupation, whichever being higher
The actual wage is the wage that the employer is paying other individuals who are in the same position offered to the H-1B nonimmigrant
The prevailing wage is based on a numerous of means that weigh occupation and geographic location of occupation
Other Considerations
Plan well in advance.
There is a 65,000 annual numerical limit of H-1B visas each fiscal year. Those with a master’s degree or higher are exempt from the cap, although there is a 20,000 petition limit for this exemption. If the USCIS receives more than 20,000 petitions requesting exemption, the USCIS will use a lottery process for random selection.
Cap numbers are filled very quickly, so it is in the best interest of applicants to plan in advance. U.S. government’s fiscal year starts on October 1st and H-1B petitions can be filed up to 6 months before the start date, which is generally April 1st for an October 1st start date.
