Below are some key requirements you must fulfill to apply for an H-1B Visa. For each requirement, we have included forms of evidence that you may submit to meet the requirement and other tips to help you prepare your petition.
In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.
+ How do I demonstrate an employer-employee relationship if I own my own company?
If you own your company you may be able to demonstrate that an employer-employee relationship exists if the control of your work is exercised by others. For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement. Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes:
+ How do I prove that my position within my business is in an occupation that normally requires a degree in a related field?
USCIS often refers to the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree. If the OOH does not indicate that a degree in a related field is normally the minimum requirement for the position, examples of evidence you may submit to demonstrate that the position normally requires such a degree includes:
+ How do I show that my degree is related to the specialty occupation?
Some of the evidence you may submit to demonstrate that your degree is related to your position includes:
+ Can I qualify without a bachelor’s degree?
If your position qualifies as do not have at least a bachelor’s degree in a field related to your position, then you may qualify by:
The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. To view the wage database and estimate the prevailing wage that may be required for your position, click here.
+ How do I demonstrate that I will be paid the appropriate wage?
To demonstrate you will be paid the appropriate wage, you must submit a Labor Condition Application (LCA) for your position, certified by the Secretary of Labor, which states, in part:
The employer is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.If you are currently working for the company (e.g. working for the company you started while on OPT), some of the evidence you may submit to demonstrate that you will be paid the appropriate wage includes:
If you are not currently working for the company, you may submit a letter from the company attesting to the wage that you will be paid once employed as an H-1B.
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.
I’m ready to apply, what’s next?
Once you have determined that the H-1B visa classification is the best pathway for you and you are ready to apply, you can find the full application process and legal requirements outlined on USCIS’s website.
|Note: When submitting evidence to USCIS, it is important to fully and clearly explain how the submitted evidence establishes eligibility for petition approval. The more clearly the petitioner can articulate his or her eligibility, the more efficiently and consistently USCIS can review and process the petition and determine eligibility for the benefit sought.|