What is an H1b? (Part 2)

Some people refer to it as the “tech workers” visa, but it is far from that. While “tech workers” use a lot of the H1bs that are available, there are doctors, dentists, engineers, teachers, lawyers, accountants and various types of analysts who also use the H1b. In order to qualify for an H1b, there are three main areas: the occupation, the employee (the beneficiary), and the employer (the petitioner).

In our last article, we discussed one of the three parts of an H1b – the specialty occupation. In this article, we will discuss the employee and what is required to qualify for an H1b in regards to the beneficiary.

The H1b Employee: The Beneficiary

As was previously discussed in Part 1, the H1b is a temporary work visa for those who work in a “specialty occupation” which is defined as a position that “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.” In order for a beneficiary to qualify for an H1b, they must have either gone through the H1b quota at one point or they are applying for a position with an exempt H1b employer.

We will touch on this more in the next article, but one should know that they have a total of 6 years of H1b time available to them. They can extend beyond the 6th year by having either a Labor Certification on-file for over 365 days or an approved I-140 that has not been withdrawn. Without either of those, the person cannot extend beyond their 6th year. With an L1A, you get a total of 7 years and an L1B gets 5 years total and unlike an H1b, both cannot extend beyond their max time. One thing to keep in mind is that H1b and L1 time are all counted as the same so if someone came on an H1b for 1 year, left and returned on an L1A for 4 years, the USCIS would consider them as having used 5years of combined H1b/L1 time and if the person were to go back to H1b status, they would only have 1 year remaining unless they have a Labor Certification on-file for over 365 days or an approved I-140.

There is also confusion regarding a person who used up their 6 years of H1b time and they have been outside the US for over 1 year. Internet rumors state that they are immediately eligible for a fresh 6 years based on the fact that they were outside the US for 365+ days. This is not accurate as there is a 2nd step to the process of resetting your 6 years. The first step is to be outside the US for 365+ days, but the person then must re-apply in the H1b quota and receive a new visa from the quota in order to have a fresh 6 years going forward. Many people are unaware of the 2nd step and assume that by staying outside the US for over a year will automatically reset the time already used, but that is not the case.

In order for someone to qualify for an H1b, they must hold either a US Bachelor’s degree or higher from an accredited university in a relevant field to the position or the equivalent to a 4-year US Bachelor’s degree based on their foreign education and/or experience and training in a relevant field to the position. The USCIS has recently come down hard on the relevance of the field in light of the position and whether the schools that the beneficiary has attended are accredited.

In some cases, it is obvious the beneficiary has the equivalent to a 4 year US Bachelor’s degree as they either have a US Bachelor’s or they have graduated from an accredited Master’s program which requires the student to have the equivalent to a 4 year US Bachelor’s to enter the program. Many foreign degrees consist of 4 year program, but some do not as is the case with a Bachelor’s in Commerce from India which is traditionally a 3 year program. In these types of cases, the beneficiary must provide either 3 years of progressive work experience in a relevant position or they must have attended a post-graduate program. For example, a person can have a 3 year Bachelor’s in Commerce and a 2 year MBA which makes 5 years total of schooling and have an evaluation service take 4years of study and show that it is the equivalent to a 4 year US Bachelor’s degree.

So what is a relevant field? The USCIS refers to the Department of Labor’s Occupational Outlook Handbook (OOH) as it contains information as to what field or fields of study are required for certain occupations. The OOH was not designed to act as an authority on what is required for occupations for immigration purposes, but rather for potential job seekers to better understand the requirements for and the details surrounding certain occupations and how they should prepare to enter that occupation. Nonetheless, the USCIS uses this resource as an authority as to what fields of study are relevant to certain occupations and someone who is filing for an H1b should reference it if they are unsure whether their field of study is relevant to the position.

In the past, the USCIS was more relaxed with the requirement that the degree should be in a relevant field based on the H1b specialty occupation. Recently, the USCIS has started to issue requests for evidence more frequently for filings where the beneficiary’s degree is not in a relevant field. In fact, those who have had previously approved H1bs are finding that the USCIS will issue a request for evidence when they file extensions even though the USCIS previously approved them for the same position based on the same education documents. For example, the USCIS will question a person who works as a Java Programmer, but has a Bachelor’s in Mechanical Engineering.

If a beneficiary’s degree is not in a relevant field, it does not mean that they are not eligible to file an H1b. In some cases, a beneficiary can show work experience in a relevant field to help support the evaluation and change the field of study to a more relevant field. The USCIS uses a 3 to 1 ratio, stating that 3 years of work experience is the equivalent to 1 year of education. If a person has 6 years of progressive experience in a relevant field and they can document it correctly, an evaluation service would find that they have a dual major as their experience would equal 2 years of education. In the example above, the beneficiary has a Bachelor’s in Mechanical Engineering, but if they have 6 years of relevant, progressive IT experience, they can get an evaluation that would likely show that they have the equivalent to a US Bachelor’s in Mechanical Engineering and Computer Science. The key to getting an evaluation done like this is to have strong experience letters from former employers. Offer letters and relieving letters do not contain enough information regarding the job duties and skills required for the position so often times, a person will need to go back and get new letters. We suggest consulting an attorney before requesting letters as they are hard to come by and can be used for both the H1b and a green card application if drafted correctly.

If the beneficiary is here in the United States, they must be in-status at all times, especially at the time of any H1b filing whether it is a transfer, extension or change of status. Different visas have different criteria for status. For example, a student visa, depending on where the student is in the process, may require evidence that they are currently enrolled and attending classes where other students, who are on OPT, must show that they have a paid job to show that they are in-status. Typically, with an H1b, you must be getting paid the salary that was on your I-129 and LCA to be considered in-status. If the beneficiary is outside the US, then they are not required to show pay checks because they are outside the US and do not have status.

Next week, we will conclude this article by discussing the 3rd part of an H1b; The Employer.

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