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H-1B Visas: Not Just a Matter of Degree

Employers who wish to sponsor highly-skilled workers should consider filing an H-1B petition on behalf of their prospective employee.

The prospective employee must have a bachelor's degree or the equivalent work experience. However, it is not just a matter of degree. There are other questions which need to be addressed before filing an H-1B visa. The foreign national must have a job offer in a "specialty occupation." Therefore, the H-1B Visa is a great visa for professionals with offers to work in their field of expertise or in a position that requires a bachelor's degree or the equivalent in a related field. Sometimes a bachelor's degree is not enough. Furthermore, unless the foreign national is already in H-1 status or is otherwise exempt, professionals aspiring H-1B status must strategically plan to have their applications filed by April1st of the year in which they intend to apply in attempt to take advantage of the limited visas. They must plan to beat the clock.

We are here to guide both employers and the prospective employees they wish to sponsor in order to facilitate and expedite the H-1B process.

Is a Bachelor's Degree enough?

Our knowledgeable attorneys can evaluate whether the company, position offered and employee qualifications all meet the H-1B requirements. When a bank wishes to sponsor a financial analyst or a medical practice wishes to sponsor a doctor, the required nexus between professional and specialty occupation will be clear. A bachelor's degree may be a sufficient prerequisite for a financial analyst position. However, a doctor will need to show that his or her degree is equivalent to a U.S. medical doctor’s degree and that he or she has the required license required to work in the state where the H-1B job is located.

Is the job offered in a specialty occupation?

The H-1B is an extremely versatile visa that can be used to sponsor a wide variety of employees. We have successfully filed H-1B petitions for professionals in diverse fields including Management Analysts, System Analysts, Accountants, Dentists, Physical Therapists, Medical Assistants, Chemists, Software Engineers, and Architects.

The fact that an individual with a bachelor's degree or equivalent experience may not appear to be the perfect fit or that the employment may appear not to require someone with a college degree does not necessarily mean that the H-1B petition will not be approved. It may just mean that you need a little more help from an experienced immigration attorney. While many positions simply will not qualify for H-1B purposes, many job offers may be much more complex than they appear and can qualify as positions in specialty occupations if the need for specialized knowledge is made clear to USCIS. In cases where the nexus is not clear, the documents in support of the petition must educate the USCIS adjudicating officer as to why the employer needs someone with a bachelor's degree or its equivalent for the job offered. Our attorneys will listen carefully to the duties that are to be carried out by the employee and research the national standards for the position offered. If we assess that the H-1B petition is feasible, we will meticulously draft a job description that will help USCIS understand why the position offered is one in a "specialty occupation." For example, we have been successful in demonstrating why a franchisee that owns three small stores needs a Business Analyst to help it attain its expansion goals. We described how in order to meet these objectives the prospective employee would be needed to provide financial advice, prepare financial reports, meet with bank officials, as well as perform other duties which require specialized knowledge in finance and accounting.

How do I file a complete and file a timely H-1B petition?

In addition to ensuring that the professional and specialty occupation demonstrate the required fit, our attorneys can advise both the corporate sponsor and employee as to all the documents needed to file a timely and well-supplemented H1-B petition. The basic form that needs to be filed by the employer is Form I-129, Petition for a Nonimmigrant Worker. However, filing an H-1B petition requires a lot more than simply filling out form I-129.

It is important to note that the H-1B petition must be filed with a certified Labor Condition Application (LCA). Before filing the LCA, the employer must be advised of the "prevailing wage." The employer must be willing to pay the prevailing wage or higher. The LCA must be filed with the Department of Labor which then has up to seven working days to provide the response. If the employer has never filed an H1-B petition before, this process can take several days or longer. We can advise the employer as to what documents should be sent to the Department of Labor before the LCA is even filed so that the Department of Labor can verify the company's FEIN number. If this step is not taken, the LCA may be denied and further delay the process.

Time may be of the essence when filing an H-1B petition because of the great demand for visas and limited number of visas. The H-1B Regular Cap is currently set at 65,000 visas and the H-1B Master's Exemption is 20,000. Although these may seem like a lot of visas, the truth is that in the recent past they have been used up quickly. USCIS will accept H-1B petitions during the first five days of April. If it receives enough visas to fill their caps, a "visa lottery" will be held which means that not all timely filed petitions will be reviewed. For example, USCIS received enough H-1B petitions to reach its statutory cap of visas for the fiscal year (FY) 2015 during the first five days of April 2014. As a result, USCIS held a computer-generated lottery. In addition to their degree and job offer in a specialty occupation, this year's initial H-1B applicants needed a little bit of luck. Our experienced attorneys can help you plan ahead to ensure that your initial H-1B petition will be ready to be filed by April 1st. Although in theory this is the date when USCIS begins to receive applications, in practice it has become an important deadline.

It is important to note that even when the 85,000 visa cap is reached, USCIS continues to accept petitions on behalf of applicants that are exempt from the cap. This includes current H-1B workers who wish to file extensions, change the terms of their employment, change employers or work concurrently in a second H-1B petition. Accordingly, our office will agree to assist workers in current H-1B status throughout the year.

Our knowledgeable attorneys can ensure that your petition is not only timely filed, but well supplemented so that it meets all H-1B requirements. In addition to assisting employers with the prevailing wage, LCA, I-129 petition and sponsor's letter, we will advise the beneficiary as to all documents he or she must gather to demonstrate his or her qualifications. Sometimes documents may need to be requested from abroad or educational evaluations must be performed by an accredited credentials evaluator. This is especially significant in cases where the prospective employee needs experience to substitute for part or all of his or her college education.

In addition to the requisite documents needed from the sponsoring employer and employee beneficiary, H-1B petitions must include the following USCIS filing fees:

1. $325 for the basic filing fee

2. $750 ACWIA fee for employers with 25 or less full-time workers (unless exempt) or
$1,500 for employers with 26 or more full-time employees (unless exempt)

3. $500 for the Fraud Prevention and Detection Fee (only with initial request for H-1B status or with a request to change employers; not applicable to Chile/Singapore petitions)

4. $1,225 Premium Processing Fee (optional expedited service -response within 15 calendar days)

Employers should prepare separate checks for each fee and make them out to the Department of Homeland Security. It should be noted that an additional fee may be applicable to companies that employ more than 50 employees where more than half are in H-1B or L-1 status.

If the employee is abroad, he or she will undergo consular processing. The petition would still be filed by the employer in the U.S. and the employee will appear for an interview at the U.S. Consulate abroad to receive the visa. If the employee is in the U.S. in a valid nonimmigrant status, he or she can apply to change or extend his or her status without having to leave the U.S. For example, many students in F-1 status apply to change their status to H-1B.

How long can an employee work in H-1B status?

Once granted, the H-1B visa will allow the professional to work in the specialty occupation for an initial period of up to 3 years. The visa can be renewed up to a total of six years. Under certain circumstances, when the employer also sponsors the H-1B beneficiary for permanent residence, the H-1B beneficiary can continue to extend the H-1B status beyond 6 years.

Can the spouse and children of the beneficiary of the H-1B employee also get visas?

The spouse and minor children of H-1B beneficiaries can apply for an H-4 visa. If they are in the U.S. in a valid status with another visa, they can apply to change status without leaving the U.S. If they are abroad, they must apply for the visa at the U.S. consulate.

The H-1B can provide an excellent means by which employers may sponsor and hire the highly-skilled workers they need. We invite you to consult with our knowledgeable attorneys and learn how we can assist you in properly documenting and filing your H-1B petition so that it meets all USCIS standards and deadlines.

Marilyn Labrada Dume

Marilyn Labrada Dumé

Founder & Managing Partner
Marilyn Dume is the founder and managing partner of the firm. Ms. Dume earned a Juris Doctor degree from Columbia Law School in 1989. Prior to attending Columbia, Ms. Dume attended University of Pennsylvania where she received her Bachelor of Arts degree in 1986. Ms. Dume is admitted to the New Jersey State Bar.

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