Chicago H1B Visa Immigration Lawyer
H-1B visa is one of the most popular employment-based visas for individuals who wish to obtain a temporary visa to work in the United States. It allows foreign nationals who are offered a position from a U.S. employer to work in the country on a temporarily basis.
The term “Specialty Occupation” is defined by the Immigration and Nationality Act as an occupation that requires a “theoretical and practical application of a body of specialized knowledge; and… attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
H-1B Visa Requirements
Generally, to be eligible for an H1B visa, the following criteria should be met:
- Employment offer from a U.S. entity to a foreign national;
- The H1B job position requires theoretical and practical application of a body of specialized knowledge that could only be attained by a specific course of study;
- The foreign national possesses a U.S. Bachelor’s degree or higher, or work experience that is equivalent to a bachelor’s degree directly related to the offered position;
- Employer/H-1B sponsor will pay the foreign national the higher of the prevailing wage or actual wage.
H1B Visa Qualifications
To qualify for the H1B visa petition, the H1b employee must fulfill one of the following qualification requirements:
- have either an U.S. degree or a foreign degree that is equivalent to a U.S. degree, or
- have experience in the specialty equivalent to the completion of such degree; and
- the actual H-1B position requires credentials that prospective employee possesses. For example: An accounting firm is hiring/ sponsoring a H-1B employee who has an Accounting degree to work as an Accountant and such position requires someone with an accounting degree.
Evaluation of Foreign Degrees for H-1B Employee
If an H-1B employee has a non-U.S./foreign degree, an educational evaluation by experts is required to establish that a foreign degree is equivalent to a U.S. degree or higher in a specialty.
What jobs fall under H-1B visa?
The nature of the H-1B position determines whether it is a specialty occupation. The requirement that an H-1B position be in a specialty occupation can be met easily in some cases because the position involved already been held by the United States Immigration and Citizen Services (USCIS) to be in a profession such as engineers, scientists, PhD researchers etc. However, there are gray areas around some of these so called “H1B specialty positions” because to be classified as a “H-1B specialty occupation”, the job position/ job title itself must require the H1B worker to perform duties that relevant to the related H-1B job position. In essence, the H-1B job duties must match the H-1B position and such position must be one that is considered “H-1B specialty occupation”.
Thus, an example of a “teaching” positions in some daycare settings may not be considered specialty occupation even though “Teachers” are generally considered a specialty occupation as they require at least a bachelor degree as a minimum entry level requirement. However, since the setting of such teaching positions are in a daycare facility as opposed to a traditional school environment and the duties involved are more of a care taker than a teacher, though the position itself sounds “professional” but because the skills involved in that particular position are not commensurate with professional standing, it will not be categorized as a H-1B specialty occupation.
Positions that are not clearly in H-1B specialty occupations
When a position is not one of the specialty occupations commonly recognized by the USCIS, it is necessary to demonstrate that the proposed position is in a specialty occupation. In construing specialty occupation for H-1B purposes, it is helpful if the following criteria can be proven:
- the entry-level for the position requires at least a bachelor’s degree or higher degree;
- the employer’s prior practice and the “industry norm” for same positions actually require a degree;
- the position did not require professional skills but has developed over time to the point that it is now profession;
- the position is so complex or unique that it requires the services of a profession.
Examples of H1b Jobs in United States
- Business Managers
- Computer Scientists
- Computer Systems Analysts
- Mechanical Engineers
- Software Developers & Software Engineers
- Social Workers
What is a Specialty Occupation for H1B?
One of the major H-1B visa requirements is that the offered H-1B job is within a H-1B specialty occupation. Not all jobs are qualified for a H-1B that is specialty occupation and it is important to establish that the “job offer” in question is considered a “H-1B specialty occupation” as defined by the Immigration and Nationality Act. The term “specialty occupation” is similar to the definition of “professional” but further requires:
- the attainment of at least a bachelor’s degree, or
- years of employment experience that are determined to be the equivalent to a bachelor’s degree.
- the degree requirement for the offered job is common to the industry or the job is so complex that it requires individual with at least a degree to fulfill such position.
H-1B Visa Cap
Obtaining an H-1B Visa can be a competitive process. Congress only makes an annual fiscal year limitation (H-1B cap) of 65,000 visas available for applicants that possess a Bachelor’s Degree, and an additional 20,000 Visas for those who have a U.S. Masters or higher Degree.
H-1B Selection Process
Historically, the first date of H-1B filing each year was April 1st or the next business day if April 1st falls on the weekend or holiday. Due to the limited H1B cap, there was almost always more H-1B filings than the annual H1B cap. To decide which H1b filings make the deadline, the USCIS would accept all the timely filed H1B petitions and run a lottery system. Whoever gets selected in the lottery will be accepted by the USCIS for subsequent adjudication. For those that do not get selected by the lottery, their full H1B petitions will be returned to H1B employers.
Since 2020, the government (USCIS) has implemented a new H-1B registration process that has significantly altered the previous H-1B selection process.
Under this new and current H1b registration process, U.S. employers are not required to file a full H-1B petition to the USCIS. To start, they have to submit a H-1B registration online with the USCIS within the registration period.
After the H-1B registration period closes, USCIS will run the H-1B lottery process on those electronic registrations. USCIS will then announce the lottery result and only those with selected registrations will be eligible to file H-1B cap-subject petitions. enter the H-1B lottery.
H-1B Visa Cap Exemption
Not all H-1B petitions are subject to the H-1B cap. As noted by the United States Citizenship and Immigration Services (“USCIS”), these cap-exempt categories may be filed at any time during the fiscal year and they commonly include:
- Institutions of higher education;
- Related or affiliated not-for-profit entities;
- Not-for-profit research organizations or governmental research organizations.
Validity of H-1B Visa
H-1B visa is generally valid for up to 3 years and may be renewed for another 3 years. The maximum number of years an individual may remain with this status is six years. Time spent outside the U.S. may be recaptured.
Hire an experienced Chicago H1B IMMIGRATION LAWYER
With over 30 years of collective experience, our Chicago immigration lawyers have successfully represented over hundreds of employers/professionals to gain their H-1B visas. Although the USCIS only accepts new H1B visa in April each year, but we routinely work on H1B visas throughout the year, including H-1B renewals, H-1B transfer and non cap-subject H1B visas.
To learn more about H-1B visa, please call 773-687-0549 or contact us online.