Nathan C. Stein, Esq.

The H-1B visa is a very attractive option for people to come work in the United States. There are a number of steps one must take in order to get the H-1B visa, and we are going to go through them one-by-one in this post.

In short, the H1B visa is specifically for foreign nationals who have job offers in careers in what the USCIS calls “specialty occupations.” The employer, not the employee, is responsible for applying for the visa. The steps in the process are outlined below:

I. You Need a Valid Job Offer from a U.S. Employer

To start, the employee must have an employment job offer from a real U.S. employer. A U.S. employer is one that pays U.S. federal taxes, has an EIN (an Employer Identification Number) from the IRS, and has a physical office that can be contacted.

The job offer must be for full time employment rather than for an independent contractor, this means that the employer controls the work of the employee, rather than allows them the independence to work on their own.

II. You Need to Work in a “Specialty Occupation”

A specialty occupation is one that requires at least a bachelor’s degree (or the equivalent degree in the employee’s country) and whatever degree is the standard in the industry, as well as theoretical and practical application of the employee’s specialized knowledge.

There is no one right definition of what is, and is not, a specialty occupation. Instead, the USCIS will continue factors such as the employee’s background, the job offer, the job title, the job contract, the job requirements and responsibilities, as well as the employer’s business itself.

III. You Must Meet the Industry Standard Requirements of the Job

The employee must also meet the industry standard educational requirements for the job including licenses and degrees. If they do not have the industry standard degrees, however, they must meet the exception for having sufficient or extensive experience in the industry that can make up for the lack of degree.

IV. The Employer Must Get an Approved Labor Certification from the U.S. Department of Labor

The employer must also meet special requirements to show that the H1B employee is not going to be reducing the availability of jobs for U.S. citizens. This means that the employer must apply with the Department of Labor (via the online FLAG system) for a Labor Certification, to ensure that foreign workers are not coming to the U.S. to work for lower wages that undercut U.S. citizens, nor are they coming to replace workers who are striking or otherwise in a labor dispute with the employer.

V. The Employer Must Apply for a Lottery and Sponsor the Employee’s H1B Visa

The employer must apply for the H1B lottery through the USCIS via electronic registration. Once they are selected in the lottery, the employer then files an H1B petition for the employee.

The employer will have to pay for the application fees, and if desired, the expedited processing fee.

In the end, the H1B is a very useful but somewhat complex process. If you are interested in learning more, or applying for one with your employees, contact us today.

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