What this means is that it is not enough for the immigrant to have a bachelor’s degree or equivalent, but that the position should also normally require a bachelor’s degree to perform the duties of that position. The Department of Labor maintains a list of occupations and the general education requirements for that occupation.

If according to the Department of Labor’s standards, the position does not normally require a bachelor’s degree or higher, the sponsoring employer must show that it is an industry standard to require a bachelor’s degree or that the position is unique and complex, thereby requiring at least a bachelor’s degree to perform the duties.

Bachelor’s Degree or Equivalent

A bachelor’s degree is a 4-year degree from an accredited U.S. or foreign university. A foreign degree must be evaluated by an accredited evaluating agency in the U.S. to be deemed equal to a U.S. bachelor’s degree.

An equivalent of a bachelor’s degree is a combination of education and work experience or just work experience that is evaluated by an accredited agency to be equivalent to a bachelor’s degree. For an H-1B visa, it has been recognized that 3 years of progressively responsible work experience can equal 1 year of college education. Thus, an immigrant with some college education or no college education can still qualify for an H-1B visa if there is sufficient work experience in the field in which the immigrant is being petitioned.

The H-1B Visa Cap

April 1 is the date to remember for H-1B visas. This is the date H-1B visas should be filed with the Citizenship and Immigration Service. There are only 65,000 H-1B visas available every fiscal year for immigrants with bachelor’s degree or non-U.S. master’s degrees. Of the 65,000 visas, 6,800 of these visas are reserved for Free Trade Visas for Chile and Singapore. So, in reality, on 58,200 visas are actually available.

On top of the 65,000 visas referenced above, there are 20,000 additional visas for immigrants with a U.S. master’s degree or higher. This advanced degree must be earned at a U.S. university to qualify.

In the past 2 years, for the 65,000 visas, there were approximately twice as many H-1B visa petitions filed on April 1 than there were visas available. This forced the Immigration Service to use a lottery type system in which cases were randomly chosen for the visas. The remaining petitions that were not chosen in the lottery system were returned with the filing fees still attached.

For the U.S. master’s degree category, the visas remained available until early May. Once the 20,000 visas were nearly allotted, the Immigration Service also resorted to a lottery system to assign the remaining the U.S. master’s degree visas.

It remains to be seen how the economy will affect the number of H-1B visa petitions filed this year.

There was an attempt to include legislation to increase the number of H-1B visas available in the stimulus packet, but this provision was removed before the stimulus packet was passed by Congress.

6 Years

With a limited exception, an H-1B visa can be extended for a total of 6 years. Once the 6 years have passed, the immigrant must change visas, obtain a green card or return home. If the immigrant is outside the U.S. for 1 year, he is once again eligible for a new H-1B visa for another 6 years.

There may be restrictions as to what type of other visas an immigrant can change to after an H-1B visa. Also and immigrant whose employer filed a green card case on his behalf may be able to extend his H-1B visa beyond 6 years. It is imperative that an immigrant seek qualified legal representation at least a year and a half before he reaches his 6 years, if he wishes to explore the options of extending or changing his H-1B visa after the 6 years.

Employer Specific

H-1B visas are employer specific. This means an immigrant can only work for the employer that filed the H-1B visa petition. If the immigrant wishes to work with another employer, the new employer must file a new H-1B petition before the immigrant can begin working with the new employer.

Once an immigrant has an H-1B visa, the visa number remains valid for 6 years. So, the immigrant would not be subject to the lottery system if the immigrant changes employers or files an extension of the H-1B visa within 6 years of getting the H-1B visa.

Beware of Fraud

There have been some high profile prosecutions of employment agencies and attorneys who have engaged filing fraudulent H-1B visa petitions. Essentially, these agencies or attorneys claim that for a certain fee they can set you up with an employer who will petition you for an H-1B visa. Beware. If it sounds too good to be true, it probably is. Many hard working and honest immigrants got caught up in these scams only to find themselves cheated out of thousands of dollars and in deportation proceedings.

As I always advise in every article, please consult with a qualified immigration attorney.

Audra R. Behné has a practice dedicated to immigration law and is a member of the American Immigration Lawyers Association and the Los Angeles County Bar Association, Immigration Division. Her main office is located at 14724 Ventura Blvd., 2nd Floor, Sherman Oaks, CA 91403 ● Tel. (818) 881-2155 ● www.audrabehne.com email: audrabehne@aol.com 

This article is for informational purposes only and is not meant to provide legal advice in any specific case. Results may vary depending on the facts of a particular case. We make no prediction, warranty or guarantee about the results of any case, nor do we assume any legal liability for the completeness of any information and its impact on the results of any case. Each case is different and results depend on the facts of each case. Consult with and retain if you need legal advice.

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