H-1B visas are only available to workers in what is defined as a “specialty occupation.” A job only qualifies as a specialty occupation if it is the type of job that requires at least a bachelor’s degree as a minimum entry requirement for the position. In order to prove that a position requires at least a bachelor’s degree, an employer must provide evidence to USCIS that:

• The degree requirement is common within the industry for the particular job, or the job is so complex or unique that it can only be performed by an individual with a bachelor’s degree; or
• The employer normally requires a bachelor’s degree for the position; or
• The position’s job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of at least a bachelor’s degree.

In order to be granted an H-1B visa, the foreign worker must possess a bachelor’s degree or its equivalent in work experience. The foreign worker’s college degree must be the type of degree that is usually required for work in the particular field in which the worker is trying to obtain an H-1B visa. If the foreign worker’s degree was not obtained in the United States, the foreign degree and transcripts will need to be evaluated by an accredited credential evaluator who will determine whether or not the degree is equivalent to an Untied States bachelor’s degree.

If the foreign worker does not have a bachelor’s degree, or possesses a degree unrelated to the specialty occupation, they may qualify for an H-1B visa based on relevant work experience. The foreign worker will need to demonstrate that they possess at least twelve years of relevant work experience. If the foreign worker has some college experience, they must possess three years of relevant work experience for each year of college that they lack.

There currently exists a cap on the number of H-1B visas that can be issued each year. The current cap is 65,000 visas per year. The fiscal year for the H-1B cap begins each year on October 1. Each year on April 1, USCIS begins accepting H-1B petitions for the next fiscal year’s H-1B visa allowance. Importantly, in March, USCIS holds a lottery registration to select which applications will receive H-1B visas.  You must be registered for the lottery in order to be selected.  

Not all H-1B visa petitions are subject to the H-1B visa cap. Visa petitions not subject to the cap include: H-1B petitions filed on behalf of individuals employed at universities, their affiliates, or related nonprofit entities, nonprofit research organizations, or government research organizations; H-1B renewals; and current H-1B visa holders transferring employers (as long as they have previously been subject to the H-1B cap). In addition, the first 20,000 H-1B petitions received by USCIS for individuals holding a United States issued master’s degree.

A United States based employer must register for the H-1B cap and file for an H-1B visa on behalf of a foreign national. Filing for an H-1B visa is a multi-step process. The employer must first file a Labor Condition Application (“LCA”) with the United States Department of Labor. Second, after filing the LCA, the employer must post a notice of filing the LCA at two conspicuous locations where the foreign national will be employed. Third, once the LCA is approved, and the notices have been posted for at least ten days, the employer must file Form I-129, Petition for a Nonimmigrant Worker, with the USCIS Service Center with jurisdiction over where the foreign national will work.

Whether you are a foreign worker looking to obtain an H-1B, or a business looking to learn more about the H-1B process, Hallett Immigration Law Group is here to help. Our founding attorney, Jennifer Hallett, has literally processed thousands of H-1B petitions and is an experienced business immigration attorney who can help employers and employees navigate the complicated H-1B process.