Understanding the H-1B Visa

Interested in hiring a foreign professional? Or maybe you are a foreign professional that a U.S. company wants to bring over to work. If either of these are the case, then the H-1B Visa may be right for you. Because there are very specific requirements for the H-1B, read on to make sure that you meet the basics before spending a lot of time and energy courting a relationship with a U.S. Company or foreign professional with any Visa intentions. It’s all about Relationships

The big requirement up front is that there must be a valid employer-employee relationship. In general terms, the U.S. Government wants to know if a U.S. company is actually going to put this foreign professional to work and pay him or her. In specific terms, the employer must (1) engage the employee to work; (2) have the ability to hire, pay, fire, supervise, and control the work performed; and of course, (3) the employer has to have an IRS ID number (“death and taxes,” even in immigration). This sounds really easy to meet, but the government kicks back applications all the time because the documentation was not put together in a manner that makes it painfully clear that the employer meets these three areas.

But what if I’m the only shareholder of my own U.S. company? Can I still get an H-1B? The unsatisfactory answer here is–maybe. Again, it all boils down to how strong a showing you can make that the company will have control over the work and the beneficiary (employee). In other words, if you can show that other authority structures (such as a board of directors) within the company would be controlling the terms and conditions of your work, then you might qualify.

That Special Someone

The next big hurdle is that the employee has to be special, and not just because his mother thinks so. The employee must have a bachelor’s degree or higher (Master’s degrees get extra-special treatment, but more on that some other time) in a specialty occupation. What does that mean? Well, if the position is one that could be done by anyone with any kind of bachelor’s degree, then it doesn’t really qualify. To help make determinations about whether a degree is required for a particular position, the government often refers to the Occupational Outlook Handbook (OOH), found here. While this is a significant source of information for making determinations, it is not the end all be all. As with the employer-employee relationship requirement, different pieces of documentation and information can be sewn together to demonstrate that a particular position requires particular education.

Can I qualify without a bachelor’s? Again, maybe. If you have a special certification or license that is relevant to the specialty occupation, or if you have the equivalent amount of education required by a U.S. bachelor’s or high degree, then you may qualify. The government even considers (generally) 3 years of work experience as being equivalent to 1 year of college.

How Much is Enough?

Finally, the last basic requirement is getting paid. The employer must pay the foreign professional the “actual or prevailing wage” for the occupation, whichever is higher. This is determined on a number of factors, including the kind of work, and even where the employee is located. In other words, the pay must match what other people are doing for that kind work, taking into consideration things like location and experience. For example, the prevailing wage for an advanced programmer may be very different in California’s Silicon Valley than it is in California’s Death Valley (if indeed there are any programmer’s in Death Valley).

An attorney can help you or your prospective employee navigate each of these areas to make sure that you are properly aligning yourself with the H-1B’s requirements. If you are an employer or employee interested in the H-1B visa process, contact our office for assistance.

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