Copyright ProfVal, LLC
First Released: November 2019
Updated: January 2020
What is an employment-based visa? An H-1B Overview
by Zachary Johnson, PhD
Founder, ProfVal LLC
What is an H-1B?
The US Government provides different types of visas for foreign, nonimmigrant workers to work in the United States. A foreign worker is someone who is not a US citizen or permanent resident who has been sponsored by a US company or other organization to work within the United States temporarily. “The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the United States.”[1] Said differently, the H-1B enables US companies to more effectively compete globally.
The H-1B visa has incredible demand; in fact, the USCIS received nearly 100,000 applications within five minutes in 2019 and crashed the U.S. government's website. [1]
Part of what makes the H-1B visa so popular for companies and workers is the seeming simplicity of it. The minimum requirement to qualify for an H-1B is just : i) that an individual must have earned a specialized bachelor's degree and ii) also have a job offer from a U.S. firm for a position that requires their degree.
First, we discuss one of the core H-1B requirements related to speciality occupations.
H-1B occupation requirements: speciality occupation, fashion model, department of defense
The H-1B classification is a specialized non-immigrant visa that enables an employer within the US to hire or “sponsor” temporary foreign worker or “beneficiary” within one of three categories: specialty occupation, department of defense cooperative research and development projects, or fashion models.[1]
Within the category of "specialty occupation", many of the positions that people are hired in relate to STEM disciplines, which is tracked on the USCIS website that shows categories where H-1B recipients are employed such as: computer-related applications; occupations related to engineering, architecture, and surveying; administrative specializations; education; medicine and health; and many other occupational categories. [2] To be a specialty occupation, a position must require:
"(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Section 214(i)(1) of the INA, 8 USC 1184(i)(1)
In addition to qualifying a position as a specialty occupation, the beneficiary (the person who hopes to work in the position) must also qualify based on one of four criteria: i) earned a relevant U.S. bachelor's degree, ii) earned a foreign bachelor's degree, iii) a state licence that is unrestricted in your area, iv) progressive work experience that is commiserate with a bachelor's degree or above. A beneficiary can also be a fashion model, which simply means that he/she must be a recognized fashion model.
ProfVal provides H-1B Expert Opinion Letters (https://www.profval.com/expertopinionletter) that can supplement your visa application by explaining whether or how: i) the duties of a position qualify for H-1B speciality occupation or fashion model requirements, ii) how an individual's background qualifies a beneficiary for a position, or iii) the combination of points i and ii.
[1] https://my.uscis.gov/exploremyoptions/h1_visas_for_temporary_workers
Temporary Employment
An H-1B authorization is typically for a maximum of 6 years, but each petition has a maximum of 3 years. After 6 years, the petitioner must either change to another visa or leave the country for a year after which point they can begin a new 6-year process.Rules related to H1-Bs also apply for: H1-B1, which is a classification for workers from Chile and Signapore and for E-3 classifications, which are for Australian workers.
[1] https://webapps.dol.gov/elaws/h1b.htm
What are the general steps for getting an H-1B?
Before you do anything else, we again recommend working with a qualified immigration attorney. The immigration process can change and there are many sub-steps to the process. No one on the ProfVal.com team is an immigration attorney and we do not (nor will we ever) provide legal assistance, but we can refer you to an attorney. Once you have legal representation, your process will include these steps along with various sub-steps such as the new registration requirement:
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File a Labor Certification Attestation (LCA) Petition through the USCIS. The LCA focuses on four primary areas: i) Wages and benefits, ii) Working conditions, iii) Work stoppage, lockout, or strike, iv) notice of intent. At the time of this writing, you will want to look at these pages for: the Labor Certification Registry and Foreign Labor Certification Forms.
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Submit your I-129 Petition for a Nonimmigrant Worker form along with your supporting documentation.
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Complete your visa application, which includes an interview with your consulate.
What is ProfVal's Role?
ProfVal’s role is to provide an external, unbiased evaluation of positions and the beneficiaries of these positions to demonstrate that: i) a position meets H-1B requirements and ii) that the candidate’s educational and work background qualify him or her for the position based on these requirements. We add transparency to the immigration process, which helps companies with US operations and also foreign workers.
These letters can be used in an initial application, a Request For Evidence (RFE), or a denial. When the USCIS questions an H-1B, the most common reason for doing so has traditionally been based on one of these four rwquirements:
“The position must meet one of the following criteria to qualify as a specialty occupation: (1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. See 8 CFR 214.2(h)(4)(iii)(A).”[1]
ProfVal offers Expert Opinion Letters that address specialty occupation requirements for a position. This may also be called: an “expert evaluation”, “position evaluation”, or similar. These evaluations will generally explain why a position is so sufficiently complex that it can only be performed by a person with a degree in a specialized field. An evaluator may also include within their opinion other arguments based on: his/her knowledge and experience that would inform an opinion in items 1, 2, 3 or 4.
For clarity, ProfVal offers these evaluations in one of the following formats:
Standard H-1B Expert Opinion Letter: ProfVal’s professional evaluators will examine the position duties with relation to best practices within an academic and/or professional setting and offer an expert opinion indicating whether the position requires at least a bachelor’s degree. Again, the expert addresses criteria related to item 1, 2, 3, or 4.
The beneficiary (the worker) must have met the qualifications for an H-1B position, which generally means that she/he must have earned the equivalent of a U.S. bachelor’s degree and in the appropriate discipline. As an example, because USCIS agents will often look for specific coursework and its relation to a position, a degree in French Literature would generally not qualify a person for a position requiring knowledge in marketing or supply chain management.
Specialty Occupation Letter with a Discussion of Academic Credential Qualifications
In addition to discussing the duties of the position, you may also require a discussion of the appropriateness of the candidate's academic credentials based on USCIS criteria. In this type of letter, an expert will specifically discuss the relevance of a candidate's academic background.
Discussion of foreign Credentials or Work Experience
If a candidate has a foreign degree, we offer “Academic Equivalency Evaluations”, which are used to demonstrate whether a foreign degree is equivalent to a U.S. degree. This means that we will evaluate a candidate’s transcript and provide an assessment of it based on the US post-secondary system.
For some candidates, we may offer a Work Experience Evaluation. Sometimes, a candidate has considerable work experience but doesn’t have a bachelor’s degree or has a bachelor’s degree in a discipline that is unrelated to the position the candidate has been offered. Based on their resume and work experience, we may argue that the petitioner has earned the equivalent of a bachelor’s degree based on the 3-for-1 rule, which is “codified at 8 C.F.R. §214.2 (h)(4)(iii)(D)(5) (in pertinent part): “For purposes of determining equivalency to a Baccalaureate degree in the specialty, 3-years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks.””[3] Notably, the USCIS takes a skeptical view of evaluations of this type and rejection rates are
[1] http://ilw.com/immigrationdaily/news/h1b20180501.pdf
[2] http://ilw.com/immigrationdaily/news/h1b20180501.pdf
[3] https://www.immigration-america.com/aao-confirms-3-for-1-rule
Interviews
The USCIS may reject an Expert Opinion Letter if an agent believes that the expert does not specifically understand the position and/or the company. In an interview, the evaluator (typically a professor) and a member of the ProfVal team will speak with the candidate’s supervisor to glean first-hand knowledge of the company, the role, and the duties of the position. Interviews thus provide first-hand knowledge that reduce the probability of claims that the evaluator is unfamiliar with the position.
ProfVal's team works with the professor or expert to ensure that she/he understands some of the most important information about the position and company.