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What must be demonstrated to secure an H-1B visa? - II

Earlier this week, our blog began examining the five requirements that foreign workers must satisfy in order to secure an H-1B visa. Specifically, we looked at the first two requirements, which dictate that 1) there must be an employer-employee relationship with a U.S.-based petitioning employer and 2) the job for which the visa is sought qualifies as a specialty occupation.

In today's post, we'll continue this discussion by examining the remaining three requirements that someone looking to secure an H-1B visa must satisfy.

To recap, these requirements include:

  • The specialty occupation is related the person's field of study
  • The pay for the for the specialty occupation is the higher of either the actual wage or the prevailing wage
  • The availability of an H-1B visa

How does a person demonstrate that their degree is related to the specialty occupation they are looking to fill?

U.S. Citizenship and Immigration Services indicates that there are several pieces of evidence that a person can submit to show that the specialty occupation is related to their chosen field of study, including:

  • A detailed description of the position -- nature of the job duties, products/services provided, etc. -- that also outlines how the person's degree plays a vital role
  • Authoritative online printouts discussing the types of degrees that people in the specialty occupation typically earn
  • Written opinions from industry experts describing how the degree is related to the type of work that will be performed
  • Evidence of how similar companies in the industry are hiring individuals for similar positions with similar degrees   

Please note while there are also ways in which a person can qualify for an H-1B visa without having earned a bachelor's degree, this subject is beyond the scope of a single blog post.

How does a person show that the wages for the specialty occupation are the higher of either the actual wage or the prevailing wage?

For starters, it's important to understand the difference between the actual wage and the prevailing wage. Here, the former is essentially the wage that an employer pays to other employees with the same experience and qualifications performing the same job, while the latter is the average wage paid to employees in a particular job in a particular location.

In addition to submitting what is known as a Labor Condition Application, H-1B visa candidates already working for the petitioning employer can submit either their most recent W-2 or recent paystubs to satisfy this requirement. Those H-1B visa candidates not already working for the petitioning employer can submit correspondence from the employer attesting to the wages that will be paid.

How would one know whether an H-1B visa is available in 2016?

As we examined earlier this month, USCIS has already announced that it took only five days for the number of H-1B visa applications to exceed the limit of 85,000 set by Congress, meaning that a lottery will soon be held. In other words, those looking to secure one in 2016 are likely out of luck.

This concludes our discussion of H-1B visas requirements. If you have questions or concerns related to H-1B visas, please consider speaking with a skilled legal professional who can explain this -- and other -- complex immigration law topics.

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