How does an H-1B visa work?
Hi, I'm Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. This is our fifth video in our seven-part series about how things work at immigration. And this one today is all about H-1Bs.
And so, in order to talk to you how this works, I'm going to go through a hypothetical situation. So, let's say that we have an engineering firm here in St. Louis and that engineering firm had an intern, and they have someone that they want to offer a job to the United States.
So, let's say the name of the engineering firm is Acme Engineering and Acme had a young lady from China, who is an engineer herself. She has a master's degree from Washington University and she is on Optional Practical Training. So, when you're done with your F-1 classroom work, you can get Optional Practical Training and go out into the world and work for an employer.
So this young lady from China, the engineer has been working at Acme and she's made such a good impression on the employers that they are willing to go to bat for her for an H-1B.
So her OPT, she got the STEM extension. So she has plenty of time, and the employer decides boy, Jia is really great, and we're going to sponsor Jia for an H-1B. So let's talk to Jim and let's talk about the conversation, how it goes. So I'll have a meeting, let's say with Jia and with the Acme HR people, and we'll talk through how this all works.
So, because Jia is on her OPT, she's eligible to change status from an F-1 to an H-1B and the first step in that is the employer's going to have to apply for a lottery with the Department of Homeland Security, with USCIS.
And in the old days, all the applications would be sent and they'd be opened up and then the lottery would be conducted. But now, one of the great changes that USCIS has made is, to have the lottery beforehand. So the employer has to sign on digitally, pay a few bucks and they get placed into the lottery.
And the lottery is conducted in April and the winners are notified. So let's say Jia makes it through the lottery. Well, then the employer has to start by going to the Department of Labor and getting a verification that the salary that they intend to pay Jia, is commensurate with the average salary in the area in which the person's going to work.
So you'll do a quick job survey, figure out what the prevailing wages, and then the employer promises to pay that during the three year time period for the H-1B. They get that certification from the Department of Labor, and then they get to work on the I-129.
The I-129 is the form that's used to change your status from an F-1 to an H-1B. And there's a lot of questions about the employer, about the employee and about the job. Those are the three main inquiries.
Does the employer have the ability to pay the person in the need? Does the job fit as a specialty occupation? And does this employee have the requisite skills and education and work background to perform the skills?
So the I-129 has three main parts. You complete all that. You submit a bunch of documents that show that the job is a specialty occupation. That's a term of art in employment immigration, and it's something that there've been a lot of fights over lately, with USCIS. Basically, you have to show that the person has a degree, usually a college degree in a certain field.
Not every college degree is created equally when it comes to H-1B.
So the general rule that we like to explain to people is, if there are people doing the job who can do that job without having a specific degree, then it's probably not a specialty occupation. For example marketing, there are a lot of people who do marketing, they don't have marketing degrees.
So it's really hard to get an H-1B for a marketing degree, but like Jia's case, she's an engineer. And in order to be an engineer, you have to have an engineering degree. And so therefore, an engineer is more likely to be found to be a specialty occupation. Now, the current administration's gone crazy on these specialty occupation definitions, but they've also been litigated a lot, and so we expect things to return to normal.
But not every job is eligible for an H-1B, but assuming that she's made it through the lottery, the Department of Labor certified the salary, then you submit the application, and you can anticipate getting request for evidence from USCIS. But the H-1B should be approved if everything is in order.
And an engineer with a master's degree, who's made it through the lottery and has an employer that wants to hire them and it's a legit employer, it should sail right through, although with the caveat that we are getting all these crazy requests for evidence from USCIS.
So, that's how an H-1B works. When you receive an H-1B, it's good for three years, that can be renewed for another three years, and it can be renewed even longer, if the employer has started the process of trying to get you an employment-based Green Card. So, we hope you found this interesting.
This is how it all works. If you have any questions, give us a call at 314-961-8200. You can email us at [email protected]. Be sure to join us in our Facebook group, which is called an immigrant home. And if you like this video, we ask you to please share it out on social and subscribe to our YouTube channel, so that you get updates whenever we make videos, just like this one. Thanks a lot. Have a great day.
