San Diego H1B Visa Lawyers at the Law Offices of Hasbini

The H1B visa category is for noncitizens who will work in the United States in a “specialty occupation,” perform services under a Department of Defense-administered project, or work as a fashion model of distinguished merit and ability.

The “specialty occupation” category is the one that applies to most employers and individuals. It refers to jobs for which the usual requirement is a U.S. bachelor’s degree or the equivalent in a specific field and for which the foreign national employee has a relevant degree or the equivalent. Examples of jobs that qualify include accountants, engineers, information technology professionals, pharmacists, scientists, and teachers.

There is a cap of 85,000 visas for first-time applicants each federal fiscal year, which runs from October 1 to September 30.

Key Features of the H1B Visa

Here are the basics of the H1B visa:

  • The H1B visa can be approved only based on a specific employer, offering a specific job in a specific location. A change in any one of these often requires the sponsoring (or new) employer to file a petition with U.S. Citizenship and Immigration Services (USCIS).
  • The employer must pay the H1B employee the higher of the actual wage or prevailing wage, as described in, “H1B Employers: What Wage Must You Pay?”
  • The H1B employee can work for up to six years in the U.S., authorized in maximum periods of three years at a time. The six-year limit does not apply if the employee works less than six months each year in the United States or has reached certain milestones in the employment-based green card process.
  • Dependent family members (spouses and children under age 21) are eligible for H4 visas to accompany the H1B worker. H4 visas do not allow for employment in the U.S.
  • If the employer terminates the H1B worker, the employer must offer to pay for return transportation to the worker’s last place of residence abroad. The return transportation requirement does not apply if the H-1B worker resigns or leaves on his or her own. It also does not apply to H-4 family members.
  • When the H1B employment ends, the employer must notify USCIS and have the petition revoked. As long as the H1B petition remains in effect, the employer must pay the worker’s wages.

H1B Visa – What Is A “Specialty Occupation?”

H1B Visa is a “specialty occupation visa.” While this term seems simple, its application proved not. There are two basic requirements to satisfy the specialty occupation standard. The first is that the employer’s job must require a specific bachelor’s degree or the equivalent in combined education and experience. The second is that the foreign national employee must have a relevant degree or the equivalent. While this sounds simple, it sometimes can become quite complex.

The H1B Job Must Require a Specific Bachelor’s Degree

The U.S. government’s H1B regulations provide four ways an employer can demonstrate that its job requires a bachelor’s degree:

  1. A bachelor’s degree normally is the entry-level requirement for the job.
  2. A bachelor’s degree is common in the industry among comparable employers.
  3. The employer normally requires a degree for the job, or
  4. The job duties “are so specialized and complex” that you typically need to have a bachelor’s degree to perform them.

USCIS often looks to the Department of Labor’s Occupational Outlook Handbook (OOH), which discusses the typical educational requirements for many different jobs. While the OOH is not always conclusive, USCIS considers it very persuasive.

A good approach, if you’re the employer, is to look at job postings for comparable positions at organizations similar to yours to see if other employers require a specific bachelor’s degree. When searching for jobs at other organizations, be sure it’s in the same industry. For example, if your organization is a power company, then you want to look for the same job at other power companies.

It is also advisable to look at the educational qualifications of other people your company has hired for the same job to determine whether you’ve been consistent in requiring a specific degree. If you have ten Marketing Assistants, for example, and nine of them had marketing degrees when you hired them, you likely can show that the job requires a degree.

You can further demonstrate that the job requires a bachelor’s degree by using other types of supporting evidence, such as a letter from a professor, to justify why the job duties are so complex that you need to have a degree.

Each federal fiscal year, a base amount of 65,000 new H1B visas are made available. This amount is reduced by 6,800 for applicants from Chile and Singapore, under free trade agreements. However, the amount is, in effect, increased by a rule stating that the first 20,000 visa petitions each year filed for people with U.S. advanced degrees (master, professional, doctorate) are exempt from the 65,000 base amount. This in effect brings the annual quota up to 85,000.

The federal fiscal year runs from October 1 of the current year to September 30 of the following year. Employers may file H1B petitions up to six months in advance of when the employee is to start working. This makes April 1 an especially important filing date for years when employers are sponsoring an H-1B worker for the next allotment of H1B visas.
Indeed, in recent years, the entire H-1B quota has been exhausted before the end of the fiscal year. In 2008 and 2013, employers filed more than 85,000 petitions on April 1. USCIS then conducted a random lottery to allocate the visas. The current lottery system takes petitions filed through the first five business days of April. As a result, it’s important to be ready to file your petition on April 1 if you want to sponsor an H-1B worker.

The H-1B cap applies to workers obtaining H-1B status or an H1B visa for the first time or to those who previously were in the U.S. in H1B status for six years, spent one year abroad and are now eligible for another six-year period. The cap does not apply to H-1B workers who will work for or at a university-affiliated nonprofit or research institute. Please be aware, however, that someone currently working at an exempt employer, such as a university, who then moves to a cap-subject employer (most private sector organizations), becomes subject to the cap and will require one of the 85,000 visas.

Self-Employment H1B Visa

Many have wondered whether you can establish your own company in the U.S. and then have your own company sponsor you for H-1B. This is known as self-employment H1B.

While self-employment H1B can be more scrutinized by Immigration than the more traditional H-1B’s, USCIS has made it possible for entrepreneurs to establish their own company and have the company sponsor the majority shareholder and even 100% owner for H-1B. This move was made to boost the U.S. economy and encourage business investors and entrepreneurs to invest in the U.S. and help create jobs.

Foreign start-up founders often struggle with visa options to stay and launch a company in the US. The options are limited, if your country is part of a US Investment treaty, one can apply for the E2 visa and start a small company by investing some money. If you have a million dollars, you could also invest in your business and could apply for an EB5 Immigrant Visa. But what if you don’t have money, and your country is not a member of the E2 treaty?

On Aug. 2, 2011, USCIS announced a number of immigration initiatives to boost the economy by attracting and retaining foreign entrepreneurs. Rather than tackling the nearly impossible task of passing immigration legislation in Congress, the Administration has decided to re-interpret the current immigration laws in favor of foreign entrepreneurs. It recognizes that it must bring the best and brightest from around the world in order to grow the U.S. economy and create jobs. In general, these new immigration initiatives reduce barriers to foreign entrepreneurs.

Under the new initiatives, an entrepreneur with a majority or even 100% stake in his or her own company, including a sole employee, may be able to obtain an H1B visa if he or she can demonstrate that the company has the right to control the entrepreneur’s employment. The USCIS states in that document that it is willing to accept the existence of an H1B employer-employee relationship, even if the prospective H1B employee owns a majority share of the company, as long as it can also be shown that there is some external check on the employee’s authority.

The USCIS referenced an independent board of directors as an example. The USCIS Q&A states that “… if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary.”

The key here therefore is whether the company has a separate Board of Directors that has authority to hire, fire, pay, or supervise the entrepreneur. This was a major step by USCIS and can be seen as a reversal of its previous policy announced in a January 2010 memo, which essentially killed any hopes of a self-employed, majority-shareholding entrepreneur to obtain an H1B visa.

The USCIS suggests that, in addition to an independent board of directors, it may be sufficient to show that there are preferred shareholders, investors, or other factors to demonstrate that the company controls the terms and conditions of the entrepreneur’s employment. The existence of this proof may be enough to establish a distinction between the entrepreneur’s ownership interest in the company and the right to control his/her employment.

If you have any questions about how to apply for an H1B visa, our office can assist you.

Projections for H-1B’s 2015 Fiscal Year

While applicants may begin filing H1B cap-subject cases on the first business day in April each year, there is less clarity about the timeframes for other aspects of the H1B cap season. Based on the schedule of events in 2014, it is possible to make some speculations as to an approximate timeline for similar aspects of the 2015 cap season.

Cap-subject H1B cases can be filed, at the earliest, during the first five business days in April. For 2015, this means that the U.S. Citizenship and Immigration Services (USCIS) will treat cases filed from April 1, 2014 through April 7, 2014 identically. If the number of cases filed through April 7th exceeds the allowable annual H1B limit or cap, then the USCIS will stop accepting cap-subject cases. A random lottery then will be held to determine which cases will be accepted for continued processing. For purposes of the lottery, cases filed requesting premium processing have no advantage or disadvantage of being selected over cases filed requesting regular processing.

If there are enough cases to exceed both the regular H1B cap and the advanced-degree “master’s cap, during the first five days of filing, the USCIS will conduct two lotteries. The first lottery will consist of cases filed against the master’s cap. Cases not selected in that lottery will be shifted into the general pool for the regular cap lottery. This two-stage lottery was necessary during the 2014 cap and is expected to apply in the 2015 H-1B fiscal year.

Over time, USCIS tracking and tallying of H1B cap filings has greatly improved. In 2014, the USCIS confirmed the need for a lottery on April 5th, the last day in the initial filing period. In 2014, by April 7th, both the master’s cap and regular cap case lotteries had been conducted. It is expected that USCIS will resort to the lottery method selection no later than the first week of April 2015.

Given the large number of H-1B filings expected come fiscal year 2015, waiting to find out whether your H-1B will be selected in the lottery is nerve-racking and intense. The earliest notifications in 2014 were premium-processing email receipts, which arrived on April 9, 2013. Even though the USCIS officially suspended premium processing timeframe guarantees for cap cases between April 1st and April 15th, some of the premium-processing cases, nonetheless, were acted upon promptly.

For those applicants planning on filing their H-1B in the 2015 fiscal year, it is important to keep up-to-date with timely cap developments, so that both employee and employer can plan how to proceed. It is very important to prepare your H-1B case and start working on it early so that it will be ready to be filed on April 01, 2015, to avoid uncertainty involved in lottery selection.