Top H-1B Visa Questions Answered: Attorney Q&A

February 15, 2018 Chelsea Iversen

The H-1B visa is the most popular visa option for employers in the U.S. Now that we’re in the midst of H-1B visa cap season, many businesses have H-1B visa questions about the application process, details and terms.

To address 10 of the most pressing H-1B visa questions, we spoke with Ryan Bay, the director of legal operations at Global Immigration Associates (GIA), an Envoy-retained immigration practitioner firm, to give us some answers.

Top 10 H-1B visa questions

Here are some answers from Ryan on some of the most-asked H-1B visa questions:

1. What exactly is a specialty occupation?

h-1b visa questions - what exactly is a specialty occupation?

Ryan: In layman’s terms, a specialty occupation is one that requires an educational background in a specific field of study that matches the available role. Try asking yourself, Can this position be performed by someone without a degree in this field?

Software engineering and computer science roles are great examples of specialty occupations, since there are few people that can do that job without the proper education. However, the person’s degree must also relate to the job. For example, if you were to sponsor a person for a software engineering role but they had a degree in history, the H-1B application could potentially be denied.

2. What is the ideal date to apply for the Labor Condition Application (LCA)?

Ryan: We recommend submitting by March 1 to give the Department of Labor (DOL) enough time to process your LCA and in case there are any issues that need to be addressed. That way, you can have your LCA certification well before your H-1B application is submitted when the cap opens on April 1. Here are some key dates to know for H-1B cap season.

3. How do I determine the prevailing wage request?

h-1b visa questions - how do I determine the prevailing wage request?

Ryan: H-1B employees have to be paid at least the minimum and actual wage for the proffered positions. Most employers use the DOL’s wage database but several also use an acceptable wage survey. The wage is generally determined based on the work location, duties, and required education and experience of the position. Your prevailing wage recommendation is part of the Labor Condition Application (LCA) which is submitted to the DOL.

4. What documentation do I need for my application?

Ryan: You’ll need to collect supporting documentation for both the employee and the company. For the employee, you’ll generally need biographical documentation, including all their educational credentials.

Diplomas and transcripts can sometimes be difficult to obtain, so it’s best to start collecting those early. You’ll also generally need to provide any documentation from previous visas in the U.S. to show the candidate has been maintaining his or her status. If he or she was a student, you’ll need to locate the I-20 and any employment authorization documentation.

On the employer side, common requests can include marketing materials that verify the nature of what your company does and provides. Financial documents are often requested, too, to prove that the position is available and feasible for the company. In addition, if the candidate will be working at an end client site, a master service agreement, statement of work(s), and end client letter(s) will be needed to document the employer-employee relationship.

Here’s a handy checklist of all the documents you’ll need for your H-1B visa application.

5. If you file for premium processing of the H-1B visa cap, are you guaranteed a spot in the lottery?

Ryan: There is no way to “guarantee” a spot in the H-1B visa cap lottery. The only way an H-1B applicant’s chance of approval can improve is if he or she possesses a U.S. master’s degree or better; there are an additional 20,000 H-1B visas available for these employees. Every other type of petition has exactly the same chances of being chosen in the lottery.

6. Are H-1B extensions part of the lottery?

Ryan: No, H-1B extensions are not part of the lottery. You can simply apply to extend the H-1B status for someone who has already been granted H-1B status within six months of its expiration if they have eligible time to request.

7. For F-1 employees applying for the H-1B, should we also start their STEM extension process in case they’re not selected?

h-1b visa questions - F-1 STEM extension at the same time?

Ryan: Absolutely! If a foreign national on F-1 status qualifies for work experience with the STEM extension, we recommend applying for that, even after an H-1B visa application has been submitted. You never know what can happen with the H-1B visa cap lottery, and there are generally no penalties for applying for both.

8. Is there any situation in which an approved H-1B visa recipient is able to work ahead of the October 1 start date?

Ryan: Any submission that goes through the lottery and is not cap-exempt is subject to the October 1 start date. If a foreign national is abroad and has to travel to the U.S. to start work, they’ll generally be granted an entry stamp on or after September 20 so they can prepare for their new role in the U.S., but they can’t work until October 1 of the same year the application was filed.

9. How do you know if an education evaluation is needed?

Ryan: Evaluations vary case by case and the DOL has information on what is typically required of a person in most roles. If the educational background does not fit the position, there may be an opportunity to do an education evaluation to close that gap and increase its chances for acceptance, but not always. Any evaluation would be based on the position and your attorney’s recommendation. As such, if the person has a foreign education, we would generally recommend getting an evaluation.

Have more H-1B visa questions? Download this H-1B survival guide to get even more answers.

Note: Content in this publication is not intended as legal advice, nor should it be relied upon as such. For additional information on the issues discussed, consult a Envoy-affiliated immigration practitioner or another qualified professional.

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