The H-1B Employment-Based Visa – An Opportunity for Many (Part 1 of 2)
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For foreign workers, the H-1B visa can represent the opportunity of a lifetime – a paved pathway toward their, or perhaps your, American Dream. In Connecticut, 1,448 initial H-1B approvals were granted to beneficiaries in 2019 for roles in educational institutions like Yale and Fairfield University, hospitals like Danbury and Bridgeport Hospital, financial institutions like Synchrony Bank, insurers and hundreds of other companies that constitute the bedrock of the Connecticut economy. Talented foreign workers are thus contributing to Connecticut companies and, in some cases, heroically saving lives during the COVID-19 pandemic.
For foreign workers, the H-1B visa can represent the opportunity of a lifetime – a paved pathway toward their, or perhaps your, American Dream. In Connecticut, 1,448 initial H-1B approvals were granted to beneficiaries in 2019 for roles in educational institutions like Yale and Fairfield University, hospitals like Danbury and Bridgeport Hospital, financial institutions like Synchrony Bank, insurers and hundreds of other companies that constitute the bedrock of the Connecticut economy. Talented foreign workers are thus contributing to Connecticut companies and, in some cases, heroically saving lives during the COVID-19 pandemic.
But what is the H-1B visa and how does one navigate this path?
The H-1B is a visa category for positions related to a few limited classifications along with a wider categorization of job types, referred to as “specialty occupations.” The core definitional requirement of a specialty occupation is that the position must require no less than the equivalent of a U.S. bachelor’s degree as a minimum qualification and that the person applying for the role must have this degree. How does this translate into real life?
Imagine a smart Brazilian woman, Silvia, who recently graduated with a bachelor’s degree in Computer Science from Western Connecticut State University, an accredited and ranked educational institution. Based on her academic credentials, she qualifies for certain types of H-1B roles. For instance, my clients with similar profiles have qualified for roles such as developer or software engineer. She would be less likely to qualify for a role as a civil engineer, accountant or supply chain consultant, as these roles would typically require a baccalaureate or graduate degree in another area and may require additional licensure, as occurs for many roles in civil engineering. With these understandable limitations, Silvia can dive deep into her job search using resources such as LinkedIn, MyVisaJobs.com, Monster or Zippia to find roles that she qualifies for.
If Silvia finds such a job, her prospective employer (called the petitioner) will need to sponsor her by going through various steps that commonly occur over a period of months. Some of these steps relate to demonstrating: that there exists a lack of qualified U.S. workers for the role, that the company is offering market wages and that an I-29 Petition for a nonimmigrant worker will be submitted by her employer. If all goes well, she will complete the visa process via an interview at a U.S. Embassy or Consulate.
If your story is like Silvia’s, keep in mind that the United States Citizenship and Immigration Services (USCIS) will often make a Request For Evidence (RFE) or may reject a petition for various reasons. Two of the top five reasons relate to topics discussed in this posting, mainly that the USCIS has questioned whether a position indeed requires a bachelor’s degree or that the beneficiary’s qualifications do not meet the academic requirements of the position. My company (www.profval.com) provides services in these areas. Other common reasons for RFEs relate to whether the USCIS believes that a beneficiary is truly an employee, there is enough work to cover the visa period, or an issue with the beneficiary’s immigration status.
If you get an RFE, don’t panic -- most petitions are approved. But remember, it is important to work with an attorney throughout this entire process, as minor errors can lead to delays or a rejection of the petition.
Zachary Johnson, Ph.D. was born in Danbury and sees value in the contributions of foreign-born workers. He is a business professor and the founder of ProfVal.com, a purpose-driven provider of research-based Expert Opinion Letters that are used to supplement employment-based visa petitions. ProfVal seeks to give back, both by providing educational resources related to work-based visas and through giving programs related to education. ProfVal does not provide legal advice and this column is not intended as such.
References:
1) https://www.uscis.gov/tools/reports-and-studies/h-1b-employer-data-hub/h-1b-employer-data-hub-files
