Working In The U.S. With An H-1B Visa

By Attorney Devin M. Connolly 

dreamstime_l_15385127President Trump has made a lot of statements regarding immigration reform. His comments about building a wall on the U.S.’ southern border have probably grabbed the most headlines, but he has also spoken about revamping the current H-1B program, which allows a foreign national to work in a “specialty occupation” in the U.S.  It is unclear what, if any, changes will be made to the H-1B program.  Thus, for now, we are all operating under the H-1B program that we have known for many years.  And now is the time to start processing your H-1B.

The U.S. Citizenship and Immigration Service (USCIS) will begin accepting H-1B petitions on April 1, 2017. It is vitally important for an employer to file the petition exactly on April 1st.  If not, as discussed below, you are risking the H-1B cap being met before you even submit your petition.

As stated above, the H-1B program allows U.S. employers to hire foreign workers to work in “specialty occupations.” A “specialty occupation” is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge.  More commonly, a “specialty occupation” is an occupation that typically requires a Bachelor’s degree for entry into the field.  Examples of “specialty occupation” include teachers, engineers, accountants, computer programmers and scientists.  As you can see, only a small percentage of occupations will actually qualify for an H-1B visa; it must be an occupation that requires a significant amount of training and education to perform.

The H-1B petition must be filed by an employer. The employer must demonstrate both that the position qualifies as a “specialty occupation” and also that the foreign national is qualified for the occupation.  The foreign national must have previously earned a Bachelor’s degree from an accredited college or university.  It is acceptable for the Bachelor’s degree to have been awarded in a foreign country, so long as the employer can demonstrate that it is equivalent to a Bachelor’s degree awarded by a college or university in the U.S.  Alternatively, if the foreign national has not yet earned a Bachelor’s degree, it is possible for their experience to qualify them for the position.

The employer must also show that the Bachelor’s degree was awarded in a subject that is related to occupation. For example, the position of “Accountant” is typically considered a “specialty occupation,” but a foreign national would not be qualified for such a position on the basis of their Bachelor’s degree in Psychology.  This type of degree is not sufficiently related to the occupation.  If the foreign national’s degree is not in a related subject and they are relying on professional experience to be qualified for the position, three years of professional experience is considered equivalent to one year of college of university education.

Assuming we have a “specialty occupation” and a qualified foreign national, we must be concerned with the H-1B cap of 65,000 new H-1B visas per year. There are also an additional 20,000 visas available for foreign nationals who have earned a Master’s degree or higher from a university in the U.S.  The trend in recent years has been for significantly more than 65,000 petitions to be submitted.  Due to this high demand of H-1B visas, it is crucial that the petition is filed on April 1, 2017.  Submitting it after that date may cause your petition to be rejected entirely simply because the cap may have already been met.

Unfortunately submitting your petition on April 1st does not guarantee you that it will be accepted.  If the USCIS receives more than the allotted amount, they will conduct what is referred to as the “H-1B lottery.”  This lottery will allow the USCIS to select a sufficient amount of petitions to be reviewed and those not selected will have their petition and filing fees returned to them.  It would clearly be disappointing to not be selected in the H-1B lottery, but you still must timely file for you petition to even be included in the lottery.

It is certainly time to start preparing H-1B petitions.  The first day you can file will be here very soon, and the failure to timely file can doom your chances of being granted the opportunity to lawfully work in the U.S.  Do not let that happen to you – contact an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law so that they can assist you with an H-1B petition.