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What Are the Eligibility Requirements of the H-1B Visa?

The H-1B visa program allows U.S. businesses to hire foreign workers in occupations that require practical or theoretical application of highly specialized knowledge.



As outlined by U.S. Citizenship and Immigration Services, there are strict requirements that must be met to acquire an H-1B visa:

1.       There must be an employer-employee relationship between the employer and the foreign national;
2.       The position must qualify as a specialty occupation;
3.       The specialty occupation must relate to the foreign national’s field of study;
4.       The employer must pay the employee a fair wage; and
5.       Unless numerical limits do not apply, an H-1B visa must be available when the petition is filed.

If you own a business and intend to hire an employee through the H-1B visa program, contact Kuck Immigration Partners. Charles Kuck is an employment visa attorney in Atlanta who will explain the eligibility requirements and ease the paperwork and reporting required by you and the foreign national. Call 404-816-8611 today to schedule a consultation.

Let’s take a closer look at the eligibility requirements of the H-1B visa:

1. Employer-Employee Relationship

In most situations, establishing an employer-employee relationship requires that the U.S. employer can pay, hire, supervise, fire and control the employment of the H-1B worker. In certain cases, the majority or sole owner of the petitioning organization or company can establish the employee-employer relationship if the petitioning entity has the right to control the beneficiary’s employment.

2. Position Qualifies as Specialty Occupation

In order for the position to qualify as a specialty occupation, one of the following criteria must be met:

·         The position normally requires a bachelor’s degree or higher degree, or its equivalent;
·         The requirement of the degree is common within the industry, or the position is so unique or complex that only a person with at least a bachelor’s degree in the specific area could fill the position;
·         The employer usually requires employees in that position to have a bachelor’s degree or its equivalent; or
·         The duties are so complex and specialized that the necessary knowledge is usually associated with obtaining a bachelor’s degree or higher.

3. Occupation Relates to Foreign National’s Field of Study

You can prove this requirement by submitting:

·         A comprehensive explanation of the service or product of the company, or the duties of the position, or the nature of the role and how the degree complements the role;
·         Expert opinions about how the degree complements the role;
·         Online resources that describe degrees normally related to the position; or
·         Evidence to prove that similar companies require similar degrees for similar occupations.

4.  Employer Pays a Fair Wage

The employer must pay the employee the actual wage or prevailing wage for the occupation – whichever is higher.

5. Unless Numerical Limits Do Not Apply, H-1B Visa Is Available When Petition Filed

Each fiscal year, there is a numerical cap of 65,000 H-1B visas. However, your petition may be exempt from the cap if it is one of the first 20,000 petitions filed on behalf of a person with a U.S. master’s degree or higher. There is a lottery every April for those applying for both types of H-1B visas.   However,  if the beneficiary is employed at or petitioned for a higher education institution, or its related or affiliated nonprofit entities, a government research organization, or a nonprofit organization, then the petition is not subject to the numerical cap.

If you have questions about the H-1B visa, contact an Atlanta immigration lawyer from Kuck Immigration Partners. Call 404-816-8611 today to schedule an initial consultation.


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