H-1B VISAS for Professionals... Step-by-Step

The Basics

• For specialists/professionals
• Job requires at least a bachelor’s degree or equivalent work experience
• Individual is degreed or has equivalent experience
• Company must pay at least prevailing wage and not less than it pays to U.S. workers in similar positions at the jobsite.
• Period of stay is 6 years (3 years plus a 3-year extension), with 7th and additional year extensions possible in certain circumstances.
• A visa number is required for new visas except for university and related employment. There are shortages of visa numbers.

The H-1B visa permits the admission of professionals and “specialists” to be employed in the United States. First, it must be determined whether the position the foreign national will fill is a professional or specialist occupation. Second, it must be proven that the foreign national is a professional or specialist qualified for the position based on his or her education and/or work experience. Third, the wages and working conditions offered the foreign national must satisfy the labor condition application (LCA) criteria. Fourth, there must be an H-1B visa number available. Visa number exemptions are available to foreign nationals with H-1B visas and those filling university and related jobs.

An H-1B visa holder may work only for the employer that sponsored the H-1B visa petition. An H-1B petition is filed for a specific job and location. H-1B workers may work part-time, provided the petition so designates or an amendment is filed.

H-1B Transfers

Hiring a person who already has H-1B visa status still requires the new employer to file a new petition with USCIS. Employment may begin as soon as the new petition is filed with USCIS, provided the individual has not worked without USCIS authorization. No visa number is required for a transfer, except from a university to a private company.

Degree Equivalency

A person may qualify for H-1B visa status without a college degree if he/she has equivalent relevant work experience. When the individual has some (or no) college education, academics in an unrelated field, or many years of professional work experience, an H-1B visa may still be possible.

The USCIS general rule is three years of progressively more responsible work experience in the relevant professional field is equivalent to one year of college. There are also other criteria which may be used.

Martin Lawler changed visa law favorably by championing work experience equivalent to a degree.

Limited Visa Numbers

There are about 65,000 H-1B visa numbers annually plus 20,000 reserved for U.S. graduates with advanced degrees (master’s, Ph.D., etc.). Chile and Singapore have numbers specifically reserved, few of which are used and are redistributed.

Unless visa number exempt, H-1Bs may be applied for on April 1, but the visas not used until October 1, the beginning of the new fiscal year. In the past few years, all H-1B numbers have been distributed on or about April 1st . Students graduating in June and obtaining practical training should, if they have a qualifying job, apply for an H-1B visa as soon as possible for if they must wait to file the following April, will run out of the one year work authorization (practical training) before the H-1B becomes effective in October. Certain students in technology fields may obtain practical training for 27 months.

The Steps

Following are the steps for obtaining an H-1B visa.

Step 1

Lawler & Lawler will send the employer and foreign national a questionnaire and list of data and documents needed. We will then analyze the job and applicant’s education, work experience, and visa history to determine if specialist/professional and other criteria are satisfied.

Step 2

We gather documents and data to support the application.

Step 3

We work with employer to evaluate and document prevailing and actual wage rates.

Step 4

We prepare the Labor Condition Application (LCA) to be filed with the Department of Labor (DOL) and posted at the worksite. We also prepare the employer’s public access files in compliance with DOL regulations.

Step 5

If individual has overseas college education, Shall we obtain an evaluation to show it is equivalent to a U.S. degree.

Step 6

We work with the employer and foreign national to prepare the H-1B petition documents and company’s supporting letter, and send them to the company for review and signature.

Step 7

H-1B petition, LCA, and supporting documents are filed with a USCIS Service Center. A change or extension of status is usually requested if the individual is in the U.S.

Step 8

Upon approval, USCIS issues a Form I-797 Approval Notice and the individual may begin work if the change of status or extension has been approved.

Step 9

If the individual is overseas, he/she must first obtain a visa stamp at the U.S. Consulate by submitting a visa application, Form DS-156 (and Form DS-157 for certain applicants), along with the Form I-797 Approval Notice and certain other documents. An individual with a valid H-1B visa stamp from a prior petition may use it with a new I-797 Approval Notice.