What is an H1B Petition and Who Qualifies?
H-1B is a nonimmigrant visa available to applicants who: 1) are in a specialty occupation; 2) with the required education and work experience; 3) sponsored by a US employer.
A “specialty occupation” for purposes of H-1B is a job requiring a minimum of a U.S. Bachelor’s degree or its foreign equivalent. If the applicant does not meet the minimum education requirements, every 3 years of relevant work experience may count as a year of university education.
A “U.S. employer” for purposes of H-1B is a company that has a U.S. tax ID number. The employer must prove that they are genuinely able to offer the job for at least the prevailing wage.
A Labor Condition Application from the Department of Labor is required to show that the employer will pay at least the prevailing wage as set by the National Prevailing Wage Center. Evidence of the company’s ability to sustain the offered job is necessary for a complete application. Documentation of such includes but is not limited to:
- IRS tax documents
- Sales invoices, client contracts
- Company brochures or online profiles
Documents supporting the offered job as a “specialty occupation”, includes but is not limited to:
- Detailed job description
- Specific necessary job skills
- Education requirements for a similar occupation
The company must prove that the applicant meets the specific education and experience requirements of the specialty occupation. Evidence of such includes but is not limited to:
- University transcripts, diplomas or foreign education evaluation
- Letter of support from company
- Past employment experience letters and resume
This visa may be renewed for a total maximum of 6 consecutive years spent in the United States. It is possible to be “recapture” time spent out of the U.S. to extend H-1B status beyond 6 years.
Applications for H-1B extensions and transfers are not subject to the annual cap set by U.S. Congress, which ordinarily applies to new H-1B petitions.
It is critical that an H-1B application is documented and organized in such a way that USCIS finds compelling. An experienced attorney is essential, particularly if the job offered is not unambiguously a “specialty occupation” or the employee does not possess the standard required education/experience. Petitioning companies must also fulfill obligations set by the immigration authorities, which includes preparing and maintaining a Public Access File for each H-1B petition. A knowledgeable attorney can help ensure that the petitioning company avoids delays or fines due to poor documentation.
To discuss H-1B petitions and other types of employment based petitions with an experienced immigration attorney from the American Visa Law Group, feel free click the contact us tab and fill out the inquiry form or call us at 510-500-1155.