H-1B Visa

  • Q: Do I qualify for an H-1B visa?
  • Q: What specialty occupations are accepted for the H-1B visa?
  • Q: What are typical questions asked in the H1-B interview?
  • Q: What is the H1-B visa annual quota, and what happens once it is reached?
  • Q: What documents are needed for my H-1B application and visa interview?
  • Q: What is the length of stay allowed by the H1-B visa and can my family join me?
  • Q: What are reasons that my H-1B visa could be denied?
  • Q: How much does the application cost and is there a way to expedite the process?
  • Q: Is it possible to apply for an H-1B visa without a bachelor's degree?
  • Q: How can I prove the proper relationship between myself and my employer?
  • Q: How can I show that my degree is related to the specialty occupation and that the occupation normally requires a degree in a related field?
  • Q: Do I qualify for an H-1B visa?

    A: You will qualify for the H-1B visa if you meet certain educational and work-related requirements.

    You must have a bachelor's degree (or higher) or the equivalent in education and experience. Foreign degrees equivalent to a U.S. bachelor's degree or higher are accepted. The job must require this degree level and/or experience for the position, and the duties involved must be specialized or complex enough that such a degree is necessary to perform these duties.

    You must work in a specialty occupation. And, you must be sponsored by an employer; individuals cannot apply for an H1-B. Your employer fills out a Form I-129, which is a petition for a non-immigrant worker, a Labor Condition Application (LCA) with the U.S. Department of Labor.

    Your job must fit specific wage requirements. The wage must be either what is deemed similar to other workers with the same qualifications in the same position, or what is the typical wage for that position in a certain geographical area. If you are currently working for the company, you may submit recent paystubs or W-2s in order to demonstrate that you will be paid the appropriate wage. If you are not yet working for the company, you may submit a letter from the company attesting to the wage that you will be paid.

    You must have an H-1B visa number. H-1B visas are limited in quantity and once the cap number is reached for the year, you cannot receive a visa; so be sure to apply as early as possible.

    If these above criteria are met, you must then apply for an H-1B visa with the U. S. Department of State. Then, you must apply to the U.S. Customs and Border Protection (CBP) for admittance to the U.S. under the H-1B visa status. Outside of the U.S., this can be done at a U.S. embassy or consulate.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: What specialty occupations are accepted for the H-1B visa?

    A: The H-1B visa exists to allow qualified aliens to live and work in the United States in their specified field. These fields are deemed 'specialty occupations' and may also include services that relate to Department of Defense (DoD) research and development projects, fashion modeling, or other services of distinguished merit.

    A specialty occupation in Section 214 (i)(1) of the INA, 8 U.S.C. 1184(i)(1) is defined as “an occupation that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

    Some examples of specialty occupations include, but are not limited to:

    • Computer scientists, programmers, data management workers, and system administrators.
    • Workers in computer-related fields make up the single largest group of HB-1 petitioners.
    • Mechanical, electrical, electronics, industrial, civil, and computer engineers.
    • Doctors, surgeons, and other health or medical field workers.
    • Architects and surveyors.
    • Social scientists.
    • Artists.
    • Biologists.
    • Writers.
    • Economists.
    • Therapists.
    • Professors and teachers.
    • Lawyers and other legal field workers.
    • Accountants and auditors.
    • Administrators and managers of various types.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: What are typical questions asked in the H1-B interview?

    A: Many people are concerned about the type of questions asked during the H1-B visa interview. It is best to be honest, straightforward, and clear with your answers. Having all the proper paperwork necessary is also an important step. Any discrepancy between your documentation and interview answers can lead to delays in obtaining your visa.

    Some common questions that you may be asked during your interview are:

    • What is the purpose of your trip?
    • Is this your first trip to the United States?
    • Are you planning on returning to your country? When and why?
    • Are you married? How long?
    • Have you held any other visas or passports before?
    • Why do you want to work in the United States?
    • Where will you live?
    • What are your degrees and qualifications? May I see them?
    • Who do you work for? For how long? What is your salary?
    • Who is your new employer? What do you know about them? How did you find them?
    • Do you have your employment offer? May I see it?
    • What does your new company do? What do they sell?

    In general, you should be ready to answer questions about yourself, your family, your education and background, where you are going, your skills and qualifications, your old employer, and your new employer. Have any documentation needed to back up your answers available with you. Again, being honest and forthcoming is the most important part of the process.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: What is the H1-B visa annual quota, and what happens once it is reached?

    A: Although there are ongoing efforts to increase the annual quota of H1-B visas issued, the current allowable number of visas for fiscal year 2015 is set at 65,000 per year, with an additional 20,000 visas available to those with advanced (masters or higher) degrees. Therefore, the total is 85,000 visas, with two different levels of qualifications. It is also worthwhile to note that from that 65,000 cap number, 6,800 visas are blocked off due to trade agreements between the United States and Singapore and Chile.

    Applications for H-1B visas can be submitted six months prior to the beginning of the fiscal year, which mean April 1st. It is advisable to submit your application as soon as possible because slots fill extremely quickly.

    When the annual quota is reached, the U.S. Citizenship and Immigration Services (USCIS) makes an announcement and a cutoff date. If you filed your petition for the visa before that date, although the quota has been reached, your application will be held until the following start of the next fiscal year in October. If you submit your petition after the cutoff date is announced, then your petition will be returned unopened and unexamined.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: What documents are needed for my H-1B application and visa interview?

    A: The documents needed for your H-1B application are only:

    • The Labor Condition Application (LCA), which your employer fills out and sends to the Department of Labor.
    • Form I-129, Petition for a Nonimmigrant Worker, which your employer fills out and sends to the U.S. Citizenship and Immigration Services (USCIS).
    • The LCA, certified by the Department of Labor, must be submitted with your I-129 form.

    At this point, you must then apply to the Department of State for your H-1B visa at your local U.S. embassy or consulate and then to the U.S. Customs and Border Protection for admittance to the United States.

    Documents that you should bring with you to the visa interview can vary, but some things you should include are:

    • I-129 form.
    • I-797 form.
    • LCA:
    • Passport.
    • Old passport if you possess one.
    • Visa application forms and any receipts for fees paid.
    • Current photograph as specified by the office.
    • Interview appointment letter.
    • Pay stubs or bank statements.
    • Marriage certificate.
    • Offer of employment letter.
    • Information about your employer.
    • Resume.
    • Proof of degrees, work, or thesis is applicable.
    • Any other documentation that would be necessary to corroborate any of the answers to the questions that you may be asked in your interview about yourself, your education, your previous employment, and your future employment.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: What is the length of stay allowed by the H1-B visa and can my family join me?

    A: The standard length of time that the visa is granted for is three years. However, under certain circumstances, it can be increased to six years if requested. If you decide that you would like to stay in the United States for more than three or six years, you may apply for a Green Card, which allows for permanent residency. Most visas do not allow for this, but the H1-B is known as a dual intent visa, which means that you may intend to immigrate as well as use the visa for work. If your visa expires and you have not received a Green Card, but wish to reapply for an H1-B visa for additional work, then you must wait at least one year before applying again.

    Yes, your spouse and unmarried children under the age of 21 may join you, but they must apply for an H-4 visa. This visa allows them to come to the U.S. and stay with you, but they are not citizens and do not receive a social security number. Your spouse and children are not allowed to work while in the U.S. However, they may obtain a driver's license, attend school, and open a bank account.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: What are reasons that my H-1B visa could be denied?

    A: There are many reasons why a visa could be denied, but some common issues are:

    • The most obvious for denial is that you are not allowed in the United States. This is called inadmissibility, and can be applicable for many reasons, such as: being a known criminal such as a drug trafficker, spy, or terrorist, having a transmittable disease such as tuberculosis or a mental or physical disease that causes you to be a danger to yourself or others, not having the proper vaccinations, or if you have already previously violated immigration laws.
    • Your employer has not submitted the proper paperwork, or has missed deadlines. Sometimes the USCIS will submit a Request for Evidence (RFE), for example, if they need more information. Your employer has a certain time frame to return the paperwork and may not have done so.
    • You are deemed to not have the requisite specialized knowledge or qualifications needed for your position. An example would be if you did not have the proper degree, or could not prove that you have such a degree. Your employer also needs to convince the U.S. Government that you do have the necessary skills and qualifications for the job.
    • You cannot show that you will be working for your employer. This often occurs if you will be working off-site at some location other than your employer's physical location. It must be proved that you are not working for someone else or otherwise circumventing the law.
    • Your company cannot be verified. If it seems that you will not be working for a legitimate U.S. company for any reason, your visa may be denied. It is the responsibility of your employer to prove this by providing proper documentation.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: How much does the application cost and is there a way to expedite the process?

    A: The cost is variable depending on the type of petition you are submitting, but a general guideline based on the 2014 fiscal year is:

    • Base filing fee of $325 USD.
    • American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee of $750 (if your employer has 25 or less employees) or $1500 USD (if your employer has greater than 25 employees).
    • Fraud Prevention and Detection fee of $500 USD.
    • Public Law 111-230 fee of $2000 USD if your employer has 50 or more employees and half of those are nonimmigrant alien workers, either H-1B or L-1.

    A separate check or payment is preferred for each fee listed. Checks should be stapled to the bottom right corner of the top document.

    For those who want or need faster service, the USCIS offers a service called Premium Processing for H-1B visas. The USCIS guarantees that within 15 calendar days, clients of premium processing will receive either an approval notice, a denial notice, a notice of intent to deny, a Request for Evidence (RFE), or notice of an investigation for fraud or misrepresentation. To request premium processing, Form I-907, (Request for Premium Processing Service) must accompany the H-1B visa petition. In addition to all other filing fees required for the application, there is a $1,225 Premium Processing fee levied. The premium processing service fee must be submitted in a separate check or money order. For most business transactions USCIS will accept credit card, debit card, and electronic fund transfers from a U.S. bank.

    To expedite the process when filing Form I-907, a postage paid self-addressed envelope might be included. USCIS will send each premium processing customer an automatic email notification upon receiving Form I-907. All subscribers to the premium processing service receive a special USCIS phone number and email address at each USCIS service center.

    Without premium processing, the typical review and approval time is between 3 and 6 months. The USCIS website has a page that lists the current processing times in your area.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: Is it possible to apply for an H-1B visa without a bachelor's degree?

    A: Yes, it is possible. However, you must either:

    • Hold a professional unrestricted license or certification in your specified field, which authorizes you to work in the capacity that your position requires. That license or certification must be valid in the state which you intend to be employed in, and you must currently be working within your field of expertise. Or,
    • Have an equivalent amount of training, work experience, or education equal to a U.S. bachelor's degree or higher degree. You must have been recognized as having expertise in your field, shown by advancement in positions and increase in responsibility over time. Typically, 3 years of work or specialized training is considered equivalent to 1 year of college.

    If either a foreign degree or work experience equivalent to a degree is claimed, then documentation showing this equivalency to a U.S. degree is required to be submitted. If work experience is taken into account, you should submit an equivalency evaluation from a college professional. If this equivalency evaluation is obtained from someone other than your school’s registrar, then you should submit a statement from the school’s registrar which can establish that the evaluating official is authorized to grant college-level credit on behalf of the educational institution.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: How can I prove the proper relationship between myself and my employer?

    A: It is the employer's responsibility to demonstrate such a relationship. The first step is to show that the company has the power to hire, fire, and otherwise direct the work of an employee such as yourself. Essentially, the employer must prove that they have the 'right to control' the employee within the workplace, which includes how, when, and where the employee does his job; this relationship must occur for the entire length of the employment. There is no one factor that determines this, and the law is open to interpretation on how this can be shown. Once that is proven, it must be demonstrated that:

    • You are being hired as a temporary, specialized worker.
    • That you are qualified to perform the duties required of your job and have sufficient expertise in your field.
    • An LCA has been filed in the geographic area in which you will be working.

    If you will be working at a third party location, which could occur if you were supporting a client of your company for example, that makes the situation more difficult. Additional proof may be required in this case. However, temporary assignment or trips to another location is generally acceptable as long as the 'right to control' remains with the original employer.

    If the relationship is not proven to the Government's satisfaction, a Request for Evidence (RFE) will be sent to the petitioner. This request will detail what the problem is so that you know how to address it and provide the proper information; however, the request will not demand any certain piece of evidence, but will instead provide examples of how eligibility for the visa can be shown. It is important that this RFE be returned promptly and within any deadlines set.

    Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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    Q: How can I show that my degree is related to the specialty occupation and that the occupation normally requires a degree in a related field?

    A: You can show that your degree is related to the specialty occupation by submitting evidence, which includes:

    • A detailed explanation of the specific duties you will perform, the product or service your company provides, or the complex nature of the role you will fill, and how your degree relates to these.
    • Written opinions from experts in the field explaining how the degree is related to the role you will fill.
    • Copies from online resources describing the degree fields that are normally associated with your H-1B occupation.
    • Evidence that similar companies in your industry require similar degrees for similar roles.

    You can show that your position within your business is in an occupation that normally requires a degree in a related field by:

    • Referring to the Occupational Outlook Handbook (OOH) from the Department of Labor.
    • Submitting copies of past position announcements that reflect the minimum requirements for the position.
    • Provide a detailed description of the business, products, or services and the duties of the position that shows that the position is so specialized or complex that it can only be performed by one with a degree.
    • Provide job listing, letters, and/or affidavits from employers that reflect the minimum requirements for the position and shows that the degree requirement is common for related positions and organizations.
    • Submit written opinion from experts in the field that explain how the degree is related to the role you will fill.
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