H-1B Visa - eTuls

A foreign citizen which plans to also work for the new enterprise to be started in the U.S. may qualify for an H-1B Visa if the position is one requiring at least a bachelor’s degree and the person has at least a bachelor’s degree or equivalent in a field related to the position. An H-1B Visa is valid for an initial period of 3 years and it can be extended in up to 3 year increments for a maximum period of stay of 6 years (while it can also be extended beyond the 6 years limit).

Are you eligible for an H-1B Visa work? This is what you need to ask yourself to find out:

Did you obtain a bachelor’s degree or an equivalent?
Can the position that you will occupy in the business be considered a “specialty occupation?”
Will it be a paid job?

Understanding H-1B Requirements

There are a few requirements that you need to fulfill in order to be eligible for an H-1B Visa. Additionally to meeting those requirements you also need to demonstrate that. Below we present the requirements and the documents that you can use to demonstrate them.

Requirement 1 – There must be an employer-employee relationship between you and the petitioning U.S. employer.

To demonstrate a valid employer-employee relationship between you and your U.S. employer, you generally need to prove that your employer can hire you, pay you, fire you and supervise you.

If the petitioning organization has a sole owner, he or she may establish a valid employer-employee relationship with the condition that the petitioning entity can show that it has the right to control your employment.

How can I demonstrate the valid employer-employee relationship if I own my own company?

In this situation you need to demonstrate that the control of your work is exercised by others besides you (e.g. your business has a board of directors, shareholders, investors) who have the right to control the terms and conditions of your employment. By terms and conditions of employment we understand hiring, firing, payment and supervision.

You basically need to prove that there is a distinction between the right to control your work and your ownership interests. You can do that by using documents such as a capitalization table, investor rights agreement, stock purchase agreement, voting agreement, term sheet, organizational documents and other operating agreements.

Requirement 2 – Your job must qualify as a specialty occupation

To qualify as a specialty occupation, the job must meet the following criteria:

The minimum requirement of the job needs to be at a least bachelor’s degree or its equivalent.
Either the job is unique and complex and it requires a bachelor’s degree or higher in order to be successfully performed or such a degree is a common requirement for this type of job in the industry
A degree or its equivalent is generally required by the employer for the position you will be hired to fill in
The specific duties you will have to perform are complex and in order to be performed at the higher standards the kind of knowledge usually associated with attaining a bachelor’s or higher degree is required.

How do I prove that my position within my business is an occupation that normally requires a degree in a related field?

The reference used by USCIS in determining whether a specific position requires a bachelor’s degree or higher is the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL). If the OOH does not indicate that, you can still prove the requirements by submitting:

Copies of past announcements for the same position or similar ones showing that they share the same requirements for education degrees.
A detailed presentation of the business, with its products/services and also a description of the position you plan to fill in and the duties of the position. This should also be accompanied by written opinions from experts confirming that the duties are so specialized or complex that they can only be performed by a professional with a degree (in a related field).
Other previous job listings, letters and/or affidavits written by other employers with the purpose of demonstrating that such a degree requirement is common in the industry for similar jobs in similar enterprises.
Other written opinions obtained from specialists in the field including arguments about the necessity of a degree when occupying a positions such as the one you intend to.

Requirement 3 – The position needs to be in a specialty occupation that is related to your field of study.

How can you show that your degree is related to the specialty occupation?

Among the documents you can submit to demonstrate that, are:

A written explanation detailing how exactly your degree helps you perform the specific duties of your position and how it is related to the company products or services.
Written opinions obtained from specialists in the field demonstrating that your degree is related to the position that you will have in the enterprise and the associated duties.
Documents obtained from on-line sources showing that your degree is among the degrees associated with the position.
Any type of evidence showing that similar businesses in the same industry are hiring employees with similar degrees for similar jobs.

Can I be eligible for an H-1B Visa without a bachelor’s degree?

There is a situation in which you can qualify without a bachelor degree and that is if the job you plan to occupy is considered as a do not have at least a bachelor’s degree job. In this case you need to have an unrestricted state license, registration or certification that proves you are authorized to practice the considered specialty occupation and also offers you the legal right to practice immediately the duties specific to the specialty occupation in the state where the business activates.

Another option is to have an education, to have completed a specialized training, and/or to have a progressively responsible experience that can be considered as the equivalent of an U.S. bachelor’s or higher degree. Normally you can consider 3 years of work experience or training in the field 1 year of college.

Requirement 4 – Your wage must be at least the actual or prevailing wage for your occupation, whichever is higher.

The process of determining the prevailing wage takes into consideration, among other factors, the geographic location of your place of work and the position you will be occupying. If you are interested in the amount of money you should have as a wage, consult the Department of Labor (DOL) database.

How do I demonstrate that I will be paid the appropriate wage?

Demonstrating that you receive the appropriate wage is done by submitting a Labor Condition Application (LCA) certified by the Secretary of Labor, which states among other things that the wages offered to aliens with a H-1B non-immigrant status by your employer during the period of authorized employment are at least equal to the amount of money that all other individuals are receiving for the specific position, having similar experience and qualifications; or at least equal to the prevailing wage specified for the occupational classification in that geographical area (whichever is greater).

The evidence submitted if you already work for the company includes your most recent paystubs and W-2 showing the value of the wages that you have received so far. For the situation in which you have not been yet employed, you can submit a letter from the organization stating the wage you will receive once you will be employed as an H-1B.

Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

Each fiscal year there are 65,000 H-1B visas issued. There are also exceptions from this cap:

Beneficiaries with a U.S. master’s degree or higher – first 20,000 petitions filed are exempt from the cap.
Employees petitioned for (or employed at) an institution of higher education, a non-profit research organization, non-profit entities affiliated or related to higher education or for a government research organization are exempt from the cap.

As you might expect, visas are issued fast and if you want to be one of the 65,000 visas issued in one year then you need to plan early and make sure you submit all the right papers. Generally you can apply for your visa until April 1 to catch the October 1 start, when the U.S. government’s fiscal year starts.

Make sure that all your evidence are properly presented and that it is very clear what requirements they are sustaining and demonstrating. This will make the process easier and faster and it will increase the chances of receiving your H-1B Visa.