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

A few weeks back, our blog discussed how the demand for H-1B visas, which enable U.S.-based employers to retain the services of foreign workers to fill specialty occupations on a temporary basis, remains incredibly high. Specifically, we talked about how there will be a lottery visa this year, as demand has once again outpaced the supply of available visas.  

In today's post, the first in a series, we'll take our discussion of H-1B visas one step further by taking a closer look at some of the requirements that those looking to secure an H-1B visa will need to be able to satisfy.

How many requirements must a person looking to secure an H-1B visa be able to satisfy?

There are five requirements that a person must be able to satisfy in order to secure an H-1B visa. These include:

  • The existence of an employer-employee relationship with the U.S.-based employer petitioning on their behalf
  • The job for which the visa is sought qualifies as a specialty occupation
  • The specialty occupation is related to the person's field of study
  • The pay for the specialty occupation is either the actual wage or prevailing wage, whichever of the two is higher
  • The availability of an H-1B visa at the time of the filing

What constitutes an employer-employee relationship?   

A valid employer-employee relationship exists wherever the employer not only has the authority to hire the employee, but also pay them, supervise their actions, terminate their services or simply control all aspects of their work.  

How does one demonstrate that the job for which the H-1B visa is sought qualifies as a specialty occupation?

There are four ways this can be shown:

  • The employer generally requires a degree or the functional equivalent for the position
  • The duties required for the position are so specialized and intricate that the knowledge needed to carry them out is typically associated with the earning of a bachelor's degree or a higher degree
  • The minimum requirement for the position is normally a bachelor's degree, a higher degree or the functional equivalent of either
  • The requirement of a bachelor's degree or higher is standard practice in the industry, or the duties required for the position are so specialized and intricate that at the very least only someone with a bachelor's degree in a related field could perform them

We'll continue this discussion in our next post. In the meantime, please consider speaking with a skilled legal professional if you have questions or concerns related to H-1B visas, or other employment matters.    

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