What Are the H1B Visa Rules and Requirements?

Foreign nationals may qualify for H1B non-immigrant visa if they plan to work long term in the U.S.  If granted, the H1B visa has a three-year validity, with potential for extension of an additional three years. There are several specific requirements to qualify for the H1B, which are worth reviewing to make sure that you […]

Foreign nationals may qualify for H1B non-immigrant visa if they plan to work long term in the U.S.  If granted, the H1B visa has a three-year validity, with potential for extension of an additional three years.

There are several specific requirements to qualify for the H1B, which are worth reviewing to make sure that you have a chance of obtaining this visa.

The Need to Have an Employer-Employee Relationship

The first step is to show that you are in an employee relationship with a US company, which is determined by your employer’s control over your work.  This should be easy to do if you have any kind of employment contract or letter that describes your position. Independent contractors may have difficulty obtaining an H1B.

You work in a Qualified Specialty Occupation

The H1B is reserved for specialty occupations, a criteria that can be met in several ways.  In general, you must show that the occupation requires a minimum of a bachelor’s degree, or that the position would typically be filled by someone with the knowledge equal to a bachelor’s degree.

There is a listing of specialty occupations on the Department of Labor website where you can check whether your job will qualify as needing a degree in the US.

Your Field of Study is Related to the Specialty Occupation

A more detailed requirement is demonstrating that your degree is related to the position within the specialty occupation.  This may be shown through a position description or other resources that link the job duties to your field of study.

There are several equivalent measures of education if you lack a US bachelor’s degree, such as professional licensing, years of related work experience or a foreign degree with an equal course of study.  However, any of these substitutes must still be related to your specialty occupation.

Prevailing Wage

If you meet all of the above requirements, you still have to show that you are being paid the prevailing wage for the position, in accordance with the US geographical location.  This rule is met by showing pay stubs, W-2 Forms or, for new positions, a letter from the company stating the wage you will be paid.

If you want to check if your pay falls within the prevailing wage you can check the website flcdatacenter.com for your occupation and location wage levels.

Visa Number Available or an Exemption From H1B Annual Limits

The final and often most problematic rule for obtaining an H1B visa is that there is a strict limit on how many are issued every year.  The current cap is set at 65,000 visas for each fiscal year beginning October 1st, so applying ahead of time is recommended, and can be done up to six months prior.

There are exemptions from the numerical cap, such as employees at higher education institutions and nonprofit or government research organizations.

 

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