This is part two of a four-part immigration law series. Read part one here.
Fortunately, the rules and regulations on qualifying employers, employees and jobs are well written, offering a clear playbook on what is needed to gain visa issuance.
To be eligible to petition for an H-1B visa, the employer must be a “United States employer” or its agent.[ii] A U.S. employer is a person, firm, corporation, contractor, or other association, or organization in the United States which:
- Engages a person to work in the United States;
- Has or will have an employer-employee relationship with the foreign national for whom it files the petition; and
- Has an Internal Revenue Service tax identification number.[iii]
This definition is very broad and has been interpreted to include everything from nonprofit organizations to government agencies to sole proprietorships.
As stated above, H-1B visas allow employers to fill jobs that are considered “specialty occupations” with foreign nationals. A specialty occupation is an occupation that “requires the theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor,” and which ordinarily “requires the attainment of a bachelor’s degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.[iv] At least one of the following types of evidence must be offered that the job qualifies as a specialty occupation:
- A bachelor’s degree or higher degree or its equivalent is ordinarily the minimum requirement for entry into the job;
- The degree requirement is common in the industry in similar jobs;
- The position is so complex or unique that it can only be performed by an individual with a degree;
- The employer requires a degree or its equivalent for the job; or
- The nature of the specific job duties are so specialized and complex that knowledge required to perform the duties is usually associated with an advanced degree.[v]
USCIS’s regulations list a number of occupations that meet this definition including: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.[vi]
It is essential that the complex nature of the job be described in the visa petition and supporting documents. The positions listed in the USCIS’s regulations are relatively easy victories, but careful preparation and execution of the game plan is still required. For all other jobs, a greater effort must be made to demonstrate to the USCIS the complex nature of the job.
Qualified Foreign Nationals
The foreign national must be “qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.”[vii] Foreign nationals will be found qualified when they hold:
- A bachelors or higher degree from an accredited U.S. college or university;
- A foreign degree determined to be the academic equivalent of a U.S. degree;
- An unrestricted state license, registration, or certification to practice the specialty occupation in the state of intended employment; or
- Education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. bachelors or higher degree with recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.[viii]
Essentially the prospective employee must have at least a bachelor’s degree or the equivalent. For many prospective employees this is not an issue, since they will hold an appropriate degree and will be able to provide a diploma and academic transcripts. If the foreign national obtained his or her degree abroad, the degree should be evaluated by an established foreign education credential evaluation service prior to submission.[ix]
For those who must rely on work-related experience, the play can be tougher to execute. An evaluation, similar to that for a foreign degree, must be provided with the petition. In general, the USCIS uses a three for one rule. This means that three years of specialized training or experience can qualify as one year of college level training. For example, a person who has three years of work experience and three years of college courses can qualify as having the equivalent of a four-year degree.
Questions about this topic may be directed to any member of the Miller Johnson Immigration Law Practice Group.
[ii] 8 CFR §214.2(h)(2)(i)(F)
[iii] 8 CFR §214.2(h)(2)(i)(A)
[iv] 8 USC §1101(a)(15)(H)(i)(b)
[v] 8 CFR §214.2(h)(4)(iii)(A)
[vi] 8CFR §214.2(h)(4)(ii)
[vii] 8 CFR §214.2(h)(4)(i)(A)
[viii] 8 USC §1184(i)(2); 8 CFR §214.2(h)(4)(iii)(C)