By Yanbin (Blair) Xu on May 15, 2023.
If your H-1B registration is selected this year, congratulations! This year, a total of 758,994 eligible registrations were submitted, and out of those, only 110,791 were selected. If you are among this select group, you have already overcome a significant hurdle. However, the journey to secure your H-1B visa doesn't end here. Selection in the lottery does not guarantee the issuance of an H-1B visa. There are essential criteria your sponsoring employer needs to meet and prove to the U.S. Citizenship and Immigration Services (USCIS) to ensure the approval of your H-1B petition:
1. Valid Employer-Employee Relationship: It is crucial to establish a legitimate
employer-employee relationship. The employer must illustrate their ability to hire,
pay, dismiss, supervise, and exercise control over the work of the prospective
H-1B employee.
2. Specialty Occupation Requirements: The job in question must fall under the
category of a specialty occupation. Typically, such roles demand at least a
bachelor's degree or equivalent in a specific field of study related to the job. The
employer is expected to prove that the nature of the job is highly specialized,
requiring a professional with a specific skill set.
3. Appropriate Education or Experience: The prospective H-1B visa holder should
possess a bachelor’s degree or higher in the specific specialty related to the job.
If the degree was obtained outside the U.S., it must be evaluated as equivalent to
a U.S. bachelor's degree or higher. In certain situations, extensive work
experience in the field may substitute for a degree.
4. Prevailing Wage Compliance: The employer must commit to paying at least the
prevailing wage for the position. This wage is determined by the job's
requirements and the average wage for similar positions in the geographical
location where the job is based.
5. Protection of U.S. Workers: The employer must confirm that employing a foreign
worker will not adversely affect U.S. workers’ ability to acquire a job. This
assurance includes a declaration that no U.S. worker will be displaced from a
similar role within a 90-day period before and after the filing of the H-1B petition.
6. Approval of Labor Condition Application (LCA): The employer is obliged to file an
LCA with the Department of Labor and receive its approval. This document is an
attestation to the fact that the employer will adhere to the rules concerning wage
levels, working conditions, and other employment terms.
It's important to remember that fulfilling these conditions doesn't necessarily guarantee the approval of your H1B petition. Each case is unique and subject to individual review by USCIS. For this reason, the guidance of experienced immigration professionals is invaluable in navigating this complex process.
Please feel free to contact us if you have any questions regarding this.
Disclaimer:
This article contains information on legal issues and is not a substitute for legal advice from a
qualified attorney licensed in the appropriate jurisdiction.