Are you a foreign national who wishes to work in the Unite States? Are you unsure of how to obtain work authorization in the U.S., or how to find a job with a U.S. employer?
This article provides guidance to foreign nationals who are interested in obtaining H-1B visas so that they may come and work for a U.S. business or company. In this article, we explain how a foreign worker can be qualified for an H-1B visa, and also offer helpful strategies and tips for securing one. (Also see the government regulations at 8 C.F.R. § 214.2(h).)
To qualify for an H-1B visa, you must have an offer of temporary work from a U.S. employer. The job must be in a "specialty occupation." Once you have your job offer, your employer will start the application process for you (by submitting an I-129 petition to U.S. Citizenship and Immigration Services (USCIS)).
USCIS looks to four criteria to determine whether a job qualifies as a specialty occupation. They are:
In practice, USCIS frequently raises questions about whether an employer's proposed job qualifies as a specialty occupation. If your job offer is in the medical, research, scientific, or engineering professions, it should be easier to demonstrate that it is in a specialty occupation. If your job is in a different industry such as Information Technology (IT), restaurant/food service, or retail, you might have to provide substantial evidence to establish that your job qualifies as a specialty occupation.
In addition to the specialty occupation requirement, you (the prospective H-1B employee) must demonstrate that you hold a bachelor's degree or foreign equivalent in a directly relevant field of study. If you received your bachelor's degree in the U.S., your employer simply will need to explain how your studies are relevant to the job.
If you received your degree from a university abroad, you might need to obtain what's called a "credentials evaluation." There are several companies that offer this service. The company will review your transcripts, your degree program, and what courses you took at your university. Using this information, it will make a determination as to whether your degree is equivalent to a U.S. bachelor's degree. The company will provide you with a detailed report explaining how your degree is equivalent to a U.S. bachelor's degree, which you can use as proof of your educational credentials.
You might not have a bachelor's degree or any degree at all. If so, do not worry. You might still be eligible for an H-1B visa. U.S. immigration law allows you to substitute work experience in place of a bachelor's degree to demonstrate that you are qualified for the job offered.
As a general rule, USCIS views three years of work experience as equivalent to one year of degree coursework. So, you will likely need to demonstrate that you have 12 years of work experience if you do not have a U.S. bachelor's degree or foreign equivalent.
As stated above, in order to qualify for H-1B status, you must have a job offer from a U.S. employer. If you are in the U.S. already, you can contact employers in your field to discuss whether they have any positions open, and whether they will be willing to hire an H-1B worker.
U.S. immigration law requires that H-1B employers pay certain immigration fees, and some employers might not be willing to pay these. Additionally, H-1B employers have to comply with special labor regulations, and some employers might not want to subject their companies to additional regulations.
Do not be discouraged if you contact a few employers and they are not willing to hire an H-1B worker. There are many U.S. companies and businesses that are willing to hire H-1B workers, so keep looking. One source to find likely H-1B employers might be the USCIS's H-1B Employer Data Hub, which has all kinds of information on employers that have submitted H-1B petitions.
If you are not in the U.S., your job search might be more difficult, but it is still possible to find an H-1B employer. Contact U.S. employers in your field and explain your situation to them. Email your resume and ask if they have positions open and would be willing to conduct a phone or email interview.
If you have any friends, relatives, or colleagues in the U.S., network with them to ask if they know of any U.S. employers who would be willing to hire an H-1B worker.
Applying for an H-1B requires careful attention to application procedures, and any delays can ruin your chances, because the government could run out of visas entirely during the year in which you apply. If your employer won't be hiring a lawyer for you, you might want to hire one on your own. Be aware, however, that the Department of Labor expects employers to pay all H-1B-related costs, including attorney fees, and this could limit the role of an attorney you hire individually.
Ideally, when conducting your job search, you should be looking for a position that relates to your degree/coursework/previous work experience. USCIS might, for example, question your H-1B petition if your degree is in Computer Science but your job offer is that of a restaurant chef. In such a situation, USCIS might feel that your prospective job is not actually a specialized occupation. To avoid this potential issue, it is best to find a job that is in your degree field.
Yes: Congress allots only 65,000 H-1B visas every fiscal year, which starts on October 1. Typically, USCIS is contacted by more than 65,000 employers wishing to file H-1B petitions every year, resulting in the H-1B cap being reached before everyone who wants one can apply.
The first 20,000 petitions USCIS receives for persons with a graduate degree from the United States (master's, Ph.D., professional degree) are exempt from the 65,000 quota. This means there effectively are 85,000 visas available each year. Having a U.S. graduate degree improves your chances of having your employer's registration selected in the annual "lottery."
If your H-1B petition is filed after the cap is reached, USCIS has no choice but to refuse your petition and you cannot obtain an H-1B visa during that fiscal year.
However, not every petition is subject to the H-1B cap. Depending on your own unique situation, you might not need to consider the H-1B cap at all. (See How to Find a Cap-Exempt H-1B Job.)
Some organizations, such as universities and affiliated nonprofits, are not subject to the annual quota and therefore can submit H-1B petitions at any time.
Keep in mind that H-1B visas are for temporary work; that is, working with an H-1B visa does not, by itself, lead to permanent residence (a green card). However, it can provide important contacts in the U.S. working world. See Nonimmigrant Work Visa as Stepping Stone to a Green Card.
If your ultimate goal is to get U.S. lawful permanent residence (a green card) and to remain in the U.S. indefinitely, it would be good to know at the outset whether the H-1B job could lead down that path with any employer you're considering accepting a job from. If the answer is "no," ask whether you would be eligible for a promotion (after proving yourself, of course) into a role that would qualify for green card sponsorship. If not, you might want to forgo the opportunity or be upfront about your plans with the prospective employer so as to explore other options.