H-1B season is upon us, and U.S. business owners want to know if the H-1B visa is a viable option to employ talented foreign workers. The answer to this question depends first on the true minimum requirements of the job being offered, and then on the foreign worker’s qualifications.
Does the job qualify?
While many employers focus on the incoming employee’s qualifications, they should first look at the job requirements. The first question is “does the position require a bachelor’s degree in a specific specialty?” If this is a position that could be filled by someone with less than a bachelor’s degree, then the position does not qualify for H-1B, and it does not matter that the foreign worker you wish to hire has a bachelor’s or even higher degree.
USCIS looks carefully at the job requirements and job duties, and adjudicators will often challenge the employer on whether the position truly requires at least a bachelor’s degree in a specific specialty. USCIS may request additional evidence from the employer to prove the position requirements, so it is best to address these potential issues from the outset. When we first get hired to file an H-1B for an employer, we will start by asking questions, such as: “do you usually require a bachelor’s degree for this position?", or "do you have other employees in this position, and if so, what is their education?”
Does the worker qualify?
The incoming worker must possess the required bachelor’s or higher degree or equivalent to qualify for the H-1B job.
Jobs that may be a good fit for H-1B:
Jobs that clearly require a specific degree, such as, for example: engineer, lawyer, accountant, physician, and software developer, are usually a good fit for an H-1B position, assuming the job duties coincide with typical job duties for the particular position and industry.
Jobs that are not a good fit for H-1B:
USCIS has been consistently challenging jobs in the analyst categories, for example: data analyst, financial analyst, and research analyst. When considering if a particular job is a good fit for H-1B, it is important to take a look at what the DOL considers typical duties and typical education for the position. If DOL data shows, for example, that less than 50% of workers in a particular job category possess at least a bachelor’s degree, that is a case that is more likely to be denied or challenged by USCIS.
Can the employer afford the DOL wage?
Another important consideration for Employers is if they can afford to pay the DOL’s prevailing wage for the position. Employers are often shocked to find out that the DOL prevailing wage is often higher than the “market wage” for the position.
CAP H-1B Petitions:
If your business is considering filing for an H-1B visa for the first time (and you are not cap exempt), it is very important to begin the process as soon as possible to make sure there is sufficient time for mandatory preliminary filings of Labor Condition Application (LCA), posting the LCA, obtaining education evaluations if needed, and fully evaluating the H-1B position and the incoming worker’s qualifications.
H-1B Visa Training by Business Immigration Lawyers:
For more information on the H-1B visa process, please consider registering for a live training conducted by practicing business immigration lawyers HERE.
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The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.