What are the criteria that companies follow for sponsoring H1B visas?

This type of visa is useful for lawyers, physicians, architects, and other professionals that wish to setup their own business in the United States or work for an employer. In order to be approved under this category, a legitimate employee-employer relationship needs to be established and this is where the experience of a skilled attorney is necessary. We have the tools and resources to connect you with the right attorney at LawTrades.

I. Requirements

In order for a foreign worker to be eligible for an H-1B visa they have to enter a field that requires technical expertise and have at the minimum a bachelor’s degree or sufficient experience in that particular field. The United States H-1B regulations offer four ways in which an employer can illustrate that a job requires a bachelor’s degree:

  • A bachelor’s degree is the entry-level requirement for such a job
  • A bachelor’s degree is common in the industry
  • The employer typically requires a degree for a similar job
  • The job duties are extremely complex thus warranting the need for the experience that comes with a bachelor’s degree

It’s clear that a bachelor’s degree is required for specialized industries such as accounting, engineering, or IT professions. However, it is less clear for some jobs. Such examples include marketing or sales jobs since employers accept a variety of degrees. In such an instance, it may be difficult to prove that a specific degree is required. The USCIS will often consult the Department of Labor’s Occupational Outlook Handbook (OOH) which discloses the common educational requirements for different jobs. Although this approach is not conclusive, it is persuasive. It also helps to look at the qualifications of other employees that have been hired by the company to determine if they have all had a specific degree. This can illustrate what specific degree is required for the job. Additionally, a letter from a professor or some other educational position can submit a letter stating how complex the job is and that a degree would be required.

II. H-1B Details

After years of uncertainty, the USCIS now accepts petitions of self-sponsorship which are H-1B petitions filed by a U.S. company that is owned by the beneficiary. This is known as the H-1B Visa for Entrepreneurs and could apply if a startup founder needs an H-1B visa. Additionally, dependent family members (such as spouses and children under the age of 21) are eligible for H-4 visas so that they may accompany the H-1B employee. However, the H-4 visas do not permit employment in the United States although this may change in the near future. If employment is terminated for any reason, the employer must offer to pay for the employee to return to his or her last place of residence abroad. If the employee leaves willfully, then this special clause does not apply nor does it apply to H-4 visas. Once employment ends, the employer must notify the USCIS so that the petition can be revoked. If the petition remains in effect, then the wages still need to be paid.

Since individuals are not permitted to apply for the H-1B visa, their potential employer must do it instead. However, the process can be quite complex as every company must petition for one of the 65,000 H-1B visas that are available every year on April 1st. Since the H-1B has become one of the most popular avenues for legally employing foreign workers, it can be difficult to obtain. The H-1B visa states that the employee can work for a maximum of 6 years in 3 year periods. However, the six year limit does not apply if the employee works less than six months each year within the United States or if they have reached certain milestones within the green card program.

III. Steps Involved

Prior to filing the petition, the employer has to file a LCA with the United States Department of Labor. This application basically states the wages that the worker will receive, the employee obligations, and that their employment will not impact the wages of a U.S. citizen. The USCIS will then follow up with the company to verify that it is financially sound and is able to sustain the wages of the employee.

As you can see, having the right lawyer is crucial as they can successfully navigate this complex process. Feel free to visit us at LawTrades for more information and to connect you with an experienced and affordable immigration lawyer.

Hope you find this answer useful! Don’t hesitate to reach out directly if you have any further questions.