The H-1B visa program allows U.S. businesses to hire foreign
workers in occupations that require practical or theoretical application of
highly specialized knowledge.
As outlined by U.S.
Citizenship and Immigration Services, there are strict requirements that must
be met to acquire an H-1B visa:
1.
There must be an employer-employee relationship
between the employer and the foreign national;
2.
The position must qualify as a specialty
occupation;
3.
The specialty occupation must relate to the foreign
national’s field of study;
4.
The employer must pay the employee a fair wage;
and
5.
Unless numerical limits do not apply, an H-1B
visa must be available when the petition is filed.
If you own a business and intend to hire an employee through
the H-1B visa program, contact Kuck
Immigration Partners. Charles Kuck is an employment visa attorney in
Atlanta who will explain the eligibility requirements and ease the paperwork
and reporting required by you and the foreign national. Call 404-816-8611 today
to schedule a consultation.
Let’s take a closer look at the eligibility requirements of
the H-1B visa:
1. Employer-Employee
Relationship
In most situations, establishing an employer-employee
relationship requires that the U.S. employer can pay, hire, supervise, fire and
control the employment of the H-1B worker. In certain cases, the majority or
sole owner of the petitioning organization or company can establish the
employee-employer relationship if the petitioning entity has the right to control
the beneficiary’s employment.
2. Position Qualifies
as Specialty Occupation
In order for the position to qualify as a specialty
occupation, one of the following criteria must be met:
·
The position normally requires a bachelor’s
degree or higher degree, or its equivalent;
·
The requirement of the degree is common within
the industry, or the position is so unique or complex that only a person with
at least a bachelor’s degree in the specific area could fill the position;
·
The employer usually requires employees in that
position to have a bachelor’s degree or its equivalent; or
·
The duties are so complex and specialized that
the necessary knowledge is usually associated with obtaining a bachelor’s
degree or higher.
3. Occupation Relates
to Foreign National’s Field of Study
You can prove this requirement by submitting:
·
A comprehensive explanation of the service or
product of the company, or the duties of the position, or the nature of the
role and how the degree complements the role;
·
Expert opinions about how the degree complements
the role;
·
Online resources that describe degrees normally
related to the position; or
·
Evidence to prove that similar companies require
similar degrees for similar occupations.
4. Employer Pays a Fair Wage
The employer must pay the employee the actual wage or
prevailing wage for the occupation – whichever is higher.
5. Unless Numerical
Limits Do Not Apply, H-1B Visa Is Available When Petition Filed
Each fiscal year, there is a numerical cap of 65,000 H-1B
visas. However, your petition may be exempt from the cap if it is one of the
first 20,000 petitions filed on behalf of a person with a U.S. master’s degree
or higher. There is a lottery every April for those applying for both types of
H-1B visas. However, if the beneficiary is employed at or
petitioned for a higher education institution, or its related or affiliated
nonprofit entities, a government research organization, or a nonprofit
organization, then the petition is not subject to the numerical cap.
If you have questions about the H-1B visa, contact an
Atlanta immigration lawyer from Kuck Immigration Partners. Call 404-816-8611
today to schedule an initial consultation.
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