H-1B Visa: Who Qualifies for it?


Seeking a temporary work visa?

Are you wondering if you can get a temporary work visa for your services in a specific specialty occupation? If so, you’re in luck! We’re here to help you through the process. 

The U.S. government grants H-1B visas to those whose knowledge or expertise is essential in a specialty occupation. Typically, your employer would be the one petitioning for your visa application. 

If you are applying for this visa and have any immigration concerns you want to discuss with an experienced immigration lawyer, don’t hesitate to contact us! We’ll help you find the best legal option for your case. 

Continue reading to learn about who is eligible for H-1B visa and its application process.

What is an H-1B visa? 

The H-1B visa, known as the “Temporary Specialty Worker” classification, is a nonimmigrant work visa that permits a foreign national to legally enter the United States to provide services or a specialty occupation. 

It is critical to understand that such a visa is just temporary, which means you can only stay for up to three years or extend it for another three years, for a maximum of six years. Additionally, there is a limit or cap to the number of visas the US can grant annually. 

But here’s some good news. The H-1B visa falls under the dual intent principle. That allows you to maintain a nonimmigrant visa status while also intending to immigrate in the future. Hence, you can simultaneously apply for a green card (if you are separately eligible) while pursuing your H-1B visa. 

Who is eligible for H-1B visa?

Who is eligible for h1b visaThis visa requires having an employer as the petitioner and an employee or the application as the beneficiary. To qualify for this type of visa, the employee must have:

  • An employer-employee relationship with the petitioner;
  • At least a bachelors degree in the same field as the job or occupation. 
  • A job offer that requires a bachelor’s degree as a minimum requirement; or has specialized and complex duties associated with getting a bachelor’s degree or higher. Some occupations requiring only certain labor certification or licenses may not qualify for this visa. 

On the other hand, the petitioning employer must:

  • File a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL);
  • Offer at least the prevailing wage for that type of job in that area;
  • Require at least a bachelor’s degree related to the services to be rendered. It could be that a degree requirement is common to the position or that its duties are very complex that it necessitates the services of an individual with a specific degree or area of specialization. 

What types of occupations are considered for an H-1B visa?

As mentioned above, the employer must file the petition for the employee who will work or render services in qualifying occupations. There are generally three (3) categories for this. 

Specialty Occupations

This refers to an occupation offered by your employer where “theoretical and practical application of a body of highly specialized knowledge” is required and an educational prerequisite for the occupation. 

Specifically, a bachelor’s degree or higher in the specific specialty (or its equivalent). The employee must also be authorized to practice the specialty occupation, such as an unrestricted state license, registration, or certification. You must also be directly engaged in that specialty in the state where you wish to work.

DOD Researcher and Development Project Worker

This applies to a foreign worker in a cooperative research and development project under a government-to-government agreement by the Department of Defense (DOD).

Similar to the above, such work should also require a bachelor’s or higher degree or equivalent to perform your duties. Specialized training, education, or “progressive work experience” in the field can also be substituted for the degree requirement. Progressive experience refers to taking on more responsibility regarding the scope of work or supervision over time. 

Fashion Model

The eligibility for this classification is pretty straightforward since you’ll need to exemplify that you are a fashion model of exceptional merit and competence.

Furthermore, the role or services of the job description must necessitate a prominent fashion model.

H-1B Visa Application Process

Step 1: Your employer/agency must apply to the DOL for a Labor Condition Application (LCA).

Before your employer can start your visa petition, they must first obtain an LCA from the DOL. An LCA serves as a sworn declaration or a written oath. The LCA can be submitted up to six months before your plan of starting to work.

Also, make sure that you and your employer check all of the qualifications stated in the “Who is eligible for an H-1B visa?” section.

Step 2: Filing of Petition

Now that your employer has an LCA, they may begin working on your H-B1 petition. They must gather the essential documents and complete forms such as Form I-129H1.

Remember that the petition must demonstrate that your employer needs a highly-skilled individual, the position offered must be a high enough level that would necessitate someone with a specific degree, and that your correct background and skills match the job requirements.

Furthermore, if your employment is subject to the yearly cap, you must register with the USCIS website to join a lottery. You must register and pay a registration fee.

Once your employer has done gathering up the requirements, they can now mail it to the USCIS. If your petition is subject to a cap, you can only send it if you win the lottery. The postal address is usually included in the registration selection notification. There is also a time frame that your employer must submit the petition. 

When the USCIS receives your petition, they will provide you a formal confirmation that your documents are being processed and a fee receipt. If USCIS requires further information or documentation from you before proceeding with your case, it will issue a Request for Evidence on Form I-797E to your employer.

In some cases, if your employer decides to do all of the work without consulting the help of an immigration lawyer, it may become a disaster since there are some legal jargons that you or your employer will not understand. In addition, even if you read the qualifications and believe you are qualified, determining who is eligible for an H-1B visa is still difficult since you need to provide documents supporting such capabilities.

Step 3: Applying for a Visa at a U.S. Consulate

Your employer will get a Notice of Action indicating whether or not the petition was approved. If your employer’s petition is approved and you want to submit your visa application to a U.S. consulate overseas, the USCIS will alert the Kentucky Consular Center. With this, they will electronically contact the consulate and transmit your file there.

Please make sure to go to the nearest U.S. Consulate in your home country to seek help from a Consular officer regarding the visa application process. You must ask for the specific instructions or steps that you need to follow.

Step 4: Admission to the United States

Once you have received your H-1B visa, you must enter the United States at any port of entry before your H-1B visa expires. A border officer will examine your visa paperwork and ask a few standard questions about your visa. The border officer will stamp your passport after you have been accepted.

If you are still unsure if you are eligible for an H-1B visa, contact a Florida immigration attorney to assess your case against immigration law and offer you the best solutions.

Start your Visa Application Today!

Nonimmigrant visas, like other immigrant visas, are not exempted from the complexities of requirements, regulations, eligibility, and process. Even the issue of “who is eligible for an H-1B visa?” need the consultation of an experienced immigration visa lawyer.

As a law office, our firm has helped people achieve their aspirations, such as obtaining a green card or becoming a U.S. citizen through naturalization. So, whatever your immigration issue is, we are here to provide you with a competent legal service.

Start your visa or green card application today in consultation with us!

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