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H-1B Visa to the U.S.: Who Qualifies?

The H-1B visa process is designed to facilitate travel for exceptionally qualified employees who require permission to temporarily work in the United States and pursue career opportunities in their area of specialization. The program is authorized under the Immigration and Nationality Act, section 101(a)(15)(H). H-1B is not an immigration visa, and allows only temporary worker status in the United States for highly skilled applicants. Not all persons who may otherwise qualify to work legally in the United States should apply for the H-1B visa, which is granted solely to workers in “specialty occupations.” For the purposes of determining eligibility, specialty occupations entail a high degree of technical proficiency and specialized expertise within a given and specific body of knowledge. Almost all applications will require the prospective worker to demonstrate that they have attained the equivalent of a four-year degree in their field, with preference to those who have attained advanced or post-graduate certifications.

Some exceptions to this criteria can apply in the case of foreign nationals employed in film, television, sport, as well as some other arts and entertainment fields. In the case of high-fashion modeling, for example, it is merely specified that the applicant must be of “distinguished merit and ability.” Title 8 of the United States Code [1184(i)(1)(A)] addresses the specific eligibility requirements for exceptionally skilled temporary guestworkers and may serve as a helpful reference for those seeking an H-1B visa. The H-1B is specifically intended for highly qualified individuals seeking permission to reside in the United States under temporary, non-immigrant status while employed by a United States employer. Other visa programs, such as the L-1, exist for employees of international companies and firms with offices in the United States. Some countries with whom the United States has free trade agreements are entitled to apply for separate visas. Examples include Canada, Mexico, Chile, Singapore, and Australia, for whom different visas are appropriate. Check with your employer to see which program you should expect to apply under.

For several reasons, including high demand among both foreign professionals and U.S. employers, the number of H-1B visas issued each fiscal year is capped at 65,000, with the application process beginning in April to accommodate an earliest starting day of work on October 1st. For fiscal year 2015, an additional 20,000 visas were awarded as an exemption to this cap for persons holding advanced and post-graduate degrees. Qualified applicants who have completed all other requirements are selected through a lottery system conducted by U.S. Citizenship and Immigration Services. This aspect of chance leaves both potential employees and their prospective employers in some degree of uncertainty while the application process is completed.

This year (2015), approximately half of all qualified applicants were rejected due to the overwhelming number of applicants seeking entrance under the H-1B visa. Despite perfect adherence to deadlines, regulations, and other protocols, applicants typically experience less than 50% acceptance rate under the H-1B program, with slightly less success reported by applicants with non-advanced degrees. The second largest factor (other than the lottery system itself) in the rejection of H1-B applications is fraud. The United States Citizenship and Immigration Service released a report in 2008 entitled “H-1B Benefit Fraud & Compliance Assessment” wherein UCIS determined that no less than 21% of H1-B visas finally awardedthrough the process are generated through fraudulent applications. In this report, unintentional error and simple noncompliance were disregarded and fraud was defined as specific misrepresentation of pertinent information on the application.

This alarming fact is only one reason that UCIS officials have become increasingly critical in the past several years when evaluating H-1B applications. Although UCIS now offers an expedited application process which guarantees a much shorter processing time, this comes at a high nominal fee and in no way guarantees that the application will not ultimately be rejected. Not only is the pool for selection highly competitive, the process can be intimidating, even overwhelming for those not particularly familiar U.S. immigration and employment law or the H-1B selection process.

For both employers and their prospective employees, it is highly advisable to have the
H-1B application prepared by an experienced attorney. Some portions of the applications process, beginning with the I-129 Petition, are quite complex and can significantly delay the entire process if not completed with exact attention to their numerous attendant regulations. These delays can weigh down future planning for yourself and your company. Even if your company has a dedicated legal team to help with immigration and visa issues, the extremely intricate and competitive nature of the H1-B visa application process is always best handled by an attorney who specializes in these matters.

In the event that an H-1B visa application is rejected, the right attorney can be incredibly helpful planning alternative strategies to facilitate your travel, including identifying other potential avenues by which it may still be possible to begin legally working in the U.S. Even with the best preparation, it is not possible to guarantee that an H-1B visa application will be granted the same year that it is applied for, however an experienced immigration attorney will decrease the likelihood of your application being rejected due to unintentional error and oversights.

H-1B Visa to the U.S.: Who Qualifies?

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Manhattan

85 Broad Street, 30th Floor
New York, NY 10005

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Queens

35-37 36th St,
Astoria, NY 11106

Phone

888-977-6335

Brooklyn

195 Montague St.
14th Floor,
Brooklyn, NY 11201

Phone

888-977-6335

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