H-1B Visa Requirements: What You Need to Know

The H1B is a powerful visa that enables foreign nationals to work in “specialty occupations.” This is a good option for many foreign nationals. This post will discuss the H1B visa requirements and should help you determine if you are eligible for the H1B visa.

If you have any questions about the information discussed in this guide, I can be contacted at contact@ashoorilaw.com. My team and I would be happy to answer any questions and to help you with the H1B process.

1. H1B Visa Requirements

The H1B visa is a powerful visa that enables foreign nationals to work in “specialty occupations” and understanding the H1B visa prerequisites, including the documents needed for H1B, is an important part of the process. The H1B visa is valid for up to 3 years initially, with one 3-year extension available.

There are four main H1B visa requirements that must be met to obtain an H1B visa.

• You must have a valid job offer from a US employer
• The job offer must be for one that is considered a “specialty occupation” position
• You must meet all requirements for the industry standard
• You must have an approved labor condition application (LCA)

Each of these four H1B visa prerequisites will be discussed in more depth in this guide. If you have additional questions about the H-1B visa or its requirements, you can review our detailed H-1B visa guide or contact our team for assistance.

To have your H1B visa approved, your application must clearly show that you meet these H1B qualifications.

You should also note that even if you meet the H1B requirements, you may not receive an H1B visa. This is because, due to a cap on available H1B visas, there is a lottery system to determine which hopeful applicants will be allowed to apply, including many individuals currently in the United States on an F-1 visa. In some cases, individuals who are not selected in the H-1B lottery may explore other temporary visa options, such as the J-1 visa, if they qualify for an approved exchange or training program. For more information about the H-1B lottery system, you may review our guide on H-1B lottery registration.

2. Valid Job Offer

One of the primary H1B visa prerequisites is that the foreign beneficiary must have a valid job offer from a U.S. employer. This requires the US employer to have a physical office, a way to be contacted, an Employer Identification Number, and pay federal taxes. The foreign beneficiary and the US employer must have a valid employer-employee relationship. This means the US employer, among other things, must control the hiring and firing of the beneficiary, their work schedule and work duties, and their salary.

The US employer must also be willing to sponsor the foreign beneficiary for an H1B visa as part of the overall H1B requirements. This requires the US employer to submit an electronic registration and, if chosen in the lottery, an H1B petition. The US employer is also responsible for several fees throughout the process, including the ACWIA fee, the Fraud Prevention and Detection Fee, and the Form I-129 fee.

The US employer must ensure a safe workplace environment for the foreign beneficiary, as well as their other workers. This is shown through the labor certification application process and will be discussed later in this guide.

H1B visas are appropriate for a wide range of fields. Some of the fields where H1B visas may be appropriate include:

• Architecture, engineering, mathematics, physical sciences, social sciences, medicine, health, education, business, law, accounting, theology, and the arts.

3. Specialty Occupation Position

Another key H1B visa prerequisite is that the job offer must be for a “specialty occupation.” This requires theoretical and practical application of specialized knowledge. A specialty occupation requires that a bachelor’s degree or higher (or the foreign equivalent) must be required for the job. This educational requirement must be the industry standard.

Several resources can help you determine if a position will be considered a “specialty occupation.” These include the Department of Labor’s Occupational Outlook Handbook, O*NET online system, and Dictionary of Occupational Titles. My team and I would also be happy to discuss your individual situation with you.

However, USCIS will look at not just the job title, but at the specific job duties listed in each application. Some of the factors that will be examined will be the beneficiary’s past experience, the contract between the US employer and beneficiary, and the US employer’s business activity.

4. Industry Standard

Meeting all qualifications for the offered job is one of the essential H1B visa prerequisites. This requires meeting the educational requirements. This is at least a bachelor’s degree (or foreign equivalent), but could require higher education. The requirement for the H1B applicant must be the same as the industry standard, as determined by the Department of Labor.

If you have a foreign degree, you may be subject to a credentials evaluation to determine its equivalency in the American system.

There is one exemption to this educational requirement to note. If you do not meet the educational requirements for the job, extensive professional experience may suffice. Generally speaking, positions requiring doctoral degrees require a doctorate. However, a bachelor’s degree plus five years of experience may suffice for a master’s degree and 3 years of work may be considered equivalent to 1 year of a bachelor’s degree program. The work you do must show the theoretical and/or practical application of specialized knowledge. My team and I can provide more information about this if it applies to your situation.

In addition to education, the beneficiary must meet all other job-related criteria that may form part of the overall H1B requirements. Applicants must have any licensure required by the US federal government or by the state or local government prior to applying for an H1B visa, barring any significant technical barrier.

5. Approved Labor Certification

Finally, obtaining an approved labor certification is one of the final H1B visa prerequisites. The labor certification is completed by the US employer and is an important step in meeting H1B requirements. This ensures that the foreign beneficiary will be treated appropriately and that the American labor market will not be hurt by hiring the foreign beneficiary.

The labor certification is usually submitted to the Department of Labor online through their FLAG system. This form will provide information about the employer, the attorney, and wages. It will also ensure that there are no labor disputes or strikes at the workplace. If the Department of Labor finds there to be any labor disputes, the H1B visa will be rejected.

The labor certification application is quite complex and is an important component of meeting H1B requirements. Therefore, it is recommended that an attorney helps you complete this labor certification application. My team and I would be happy to assist you with it, as well as with the rest of the H1B application process.

6. Conclusion

The H1B is a powerful visa that enables foreign nationals to work in “specialty occupations”. To satisfy the H1B qualifications, you must have a job offer from a U.S. employer willing to sponsor you, plan to work in a specialty occupation, meet all the industry standard requirements for the job, and obtain an approved labor certification.

If you have any questions about any of the requirements discussed in this guide or about the H1B visa in general, Ashoori Law would be happy to assist you. You can also feel free to email me directly at contact@ashoorilaw.com. I am very responsive via email and I would be happy to help you.

Resources:

• https://www.ashoorilaw.com/h1b-visa/

• https://www.foreignlaborcert.doleta.gov/preh1bform.cfm

• https://www.uscis.gov/working-united-states/temporary-workers/H1B-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models