How to Get an H-1B Visa - The Facts Explained by Immigration Attorney
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How to Get an H-1B Visa

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The first thing you need to get an H-1B visa is a job offer. H-1B visa occupations are professional-level jobs that typically require a university degree, its equivalent or higher. (The equivalent of a bachelor’s degree is usually considered three years of work experience for each year that would normally be spent at university).

You can reference the Occupational Outlook Handbook (OOH) to determine whether or not the H-1B position for which you need sponsorship requires a degree and which specific degree is required.

You can also provide proof of the type of degree required by showing the history of the company, industry want ads, and maybe statements by industry professionals. Another way to prove that the job is a specialty occupation is by disclosing the sophistication of the job duties required and higher wage levels.

Another thing you need to know about is that you have to be paid the prevailing wage. The prevailing wage for the county and state is determined by the Foreign Labor Certification Data Center or the National Prevailing Wage Center. The information provided by these centers is utilized to determine the wage level of the H-1B job.

H-1B visa positions paying level 1 wages have had trouble getting approved in the last couple of years. However, they are not impossible to get as long as the level 1 wage job requires a degree, but doesn’t have any job discretion. A discretionary position means that there are supervisors who regulate the H-1B employee’s job duties. Note that level 1 wage jobs are much trickier to get approved and many people have stopped using them altogether.

Another factor to consider is whether or not the job is at a third party work-site and which company has the “right to control.” Does the petitioner have the right to control or is the petitioner just sending the H-1B employee over to the other company, which is effectively the employer?

The “right to control” is language that should be in contracts, and should be done in effect where the petitioner, in fact, has supervising standards over them and is active in that job. The most common way of deciding who has the “right to control” is by looking at who pays the H-1B worker, sets their hours, directs their daily tasks, is in charge of hiring and firing, provides benefits and claims the worker for tax purposes.