The H1-B visa is a non-immigrant visa that allows U.S. companies to employ foreign workers in specialty occupations requiring theoretical or technical expertise. This program helps U.S. employers fill critical skill gaps by attracting talented professionals worldwide. To qualify, employers must offer a job that requires a bachelor's degree or equivalent, and foreign workers must possess the necessary qualifications. The application process involves a lottery system, and recent developments have led to increased scrutiny and proposed changes.
Definition, Requirements, and Proving Eligibility for H1-B Visas
Definition
An H1-B visa is a non-immigrant visa that permits U.S. employers to temporarily employ foreign workers in specialty occupations. These occupations require the theoretical and practical application of highly specialized knowledge and a bachelor's degree or higher in the specific specialty or its equivalent.
Requirements for H1-B Visas
To be eligible for an H1-B visa, both the employer and foreign worker must generally meet certain criteria:
Employer Requirements:
1. Have a valid Federal Employer Identification Number (FEIN)
2. Offer a job that qualifies as a specialty occupation
3. Pay the prevailing wage for the occupation in the area of employment
Foreign Worker Requirements:
1. Possess a bachelor's degree or equivalent in a field related to the specialty occupation
2. Hold any necessary licenses or certifications required for the occupation
3. Have an offer of employment from a U.S. employer
Proving Eligibility for H1-B Visas
To prove eligibility for an H1-B visa, the employer and foreign worker must generally provide evidence of:
1. The foreign worker's educational qualifications, such as degrees, transcripts, and equivalency evaluations
2. The job's requirements and its classification as a specialty occupation
3. The employer's ability to pay the prevailing wage, demonstrated through financial statements or tax returns
4. The Labor Condition Application (LCA) certification from the Department of Labor
Legal Process for a Lawyer Representing a Client Seeking an H1-B Visa
When representing a client seeking an H1-B visa, a lawyer may do the following:
1. Eligibility Assessment: The lawyer reviews the employer's job requirements and the foreign worker's qualifications to determine H1-B eligibility.
2. Prevailing Wage Determination: The lawyer assists the employer in obtaining a prevailing wage determination from the Department of Labor.
3. Labor Condition Application (LCA): The lawyer helps the employer file and obtain certification of an LCA, ensuring compliance with wage, working condition, and benefit requirements.
4. H1-B Petition Preparation: The lawyer prepares and files Form I-129, Petition for a Nonimmigrant Worker, with USCIS, including all necessary supporting documents and fees.
5. Lottery and Selection: If the H1-B cap is reached, the lawyer monitors the lottery process and communicates with the employer and foreign worker about the petition's selection status.
6. Adjudication and RFEs: The lawyer tracks the petition's progress, responding to any Requests for Evidence (RFEs) or other inquiries from USCIS.
7. Approval and Visa Issuance: If the petition is approved, the lawyer guides the foreign worker through the process of obtaining an H1-B visa at a consulate abroad or changing status within the U.S.
8. Compliance and Extensions: The lawyer advises the employer on maintaining compliance with H1-B regulations and record-keeping requirements and assists with filing extensions or amendments as needed.
Throughout the process, the lawyer serves as a knowledgeable resource, helping the employer and foreign worker navigate the complexities of the H1-B visa program and working to achieve a successful outcome.
