H-1B Visa Lawyer - Miami, Florida

What is an H-1B Visa?

The H-1B Program was created to manage the process of employers who seek to hire nonimmigrant aliens as workers in certain speciality work positions. A specialty occupation is one that requires highly specialized knowledge and the attainment of at least a Bachelor’s degree or equivalent in the home country. The purpose of this program is to help employers find talent overseas because there are not sufficient skills or abilities in the United States workforce. This program allows for temporary employment of qualified individuals for three (3) years, and it can be extended for a maximum period of six (6) years.

Types of H-1B Visas

Generally, there are 3 categories of H-1B Visas, which target specific groups of workforce talent. Those 3 are:

H-1B

H-1B refers to speciality occupations. The majority of this page will review aspects of this program.

H-1B2

H-1B2 refers to DOD researchers and development project workers. This program is a government to government agreement administered for the Department of Defense.

H-1B3

H1-b3 refers to fashion models.To be eligible for a H-1B3 visa, the fashion model must be one of prominence, of distinguished merit and ability.

Eligibility Criteria for H-1B

To be eligible for a H-1B, the recipient must:

• Have theoretical and practical application of a body of highly specialized knowledge
• Have at least a Bachelor’s degree or higher in a specific speciality
• Hold an unrestricted state license, registration, or certification that authorizes them to fully practice the speciality occupation

In addition, the employer must:

• Require at least a Bachelor’s degree for this position
• Need a complex or unique set of skills that require at least a Bachelor’s degree to complete

How to Sponsor an Individual for a H-1B Visa

The process of sponsoring an individual for a H-1B visa can be highly complex. We recommend hiring a qualified immigration lawyer to help you navigate this process. 

Let’s review the process to sponsor an individual for a H-1B Visa:

1. Review the Job Description

The first step is to review the job description to make sure it qualifies for a H-1B designation. The job qualifications must meet the following criteria:

• Bachelor’s degree is the minimum requirement
• This Bachelor’s degree is common in the industry
• The employer normally requires an equivalent degree for a similar position
• The job is so specific, specialized, and complex that it requires at least a Bachelor’s degree

An employer must make sure their prospective employee meets the following criteria:

• Have completed a Bachelor’s degree or higher or
• Hold a foreign degree that is equivalent
• Hold a license, registration, or certification that is unrestricted for use in your state
• Have the necessary experience and is recognized as an expert in the area of hiring

2. Determine Rate of Pay

An H-1B employer must pay its employees at least what is “required” for the position. Employers can use one of the following wage sources to obtain the least salary that is required:

1. Prevailing Wage Determination (PWD) obtained from the National Prevailing Wage Center (this is the most common)
2. A survey conducted by an independent authoritative source or
3. A legitimate source of wage information

Tip: Sometimes changing the job description or role can make a difference to ensure you have the tax records to prove you can pay the candidate an appropriate rate of pay in line with the prevailing wage. 

3. Notify the U.S. Workforce through Recruitment

Notice of the position must be given to U.S. workers within 30 days before the date an employer files the Labor Condition Application (LCA) with the Department of Labor (DOL).  In this step, the employer should pay attention to and document where they leave the written notice of the position.  Further, the employer should keep all resumes for U.S. workers who apply and actually interview qualified candidates.  If the DOL determines that a more qualified U.S. worker could have or should have been hired for the role, the H-1B would be denied on that ground.   

4. Submit Labor Condition Application

The next step is to submit a Labor Conditions Application (LCA) to the Department of Labor for certification  no more than 6 months before the initial date of intended employment. This application requires the employer to attest and comply to the following:

• The working conditions will not adversely affect other similarly employed employees.
• The employer will pay at least the same wage to the H-1B employee as they would to similarly qualified employees

5. Register with the USCIS

The next step is to register with the USCIS for the annual H-1B lottery. Because of the limited number of H-1B visas available, a lottery is held each year for employers seeking to sponsor the visa on behalf of a worker.  This is typically done at the beginning of March each year for approximately 14 calendar days. 

6. Await Lottery Selection

The USCIS will conduct a random selection of the first 65,000 H-1B visas, then another 20,000 for beneficiaries with a minimum of a Master’s degree or higher from a US institution of higher education. You will receive one of the following statuses:

• Submitted: The status may remain submitted until the end of the year, then it will be marked selected, not selected, or denied
• Selected: This is the outcome you’re hoping for
• Not Selected: This means the candidate has not been selected this fiscal year
• Denied: Denied means that the same registrant or representative submitted more than 1 submission.

7. Submit Necessary Paperwork

If you are selected for the visa, you have until the end of June that year to file the necessary paperwork to apply for the H-1B visa.  You can pay extra to “Premium Process” the decision in your case, meaning you should receive a decision or a response for evidence in the case within 14 days.  While this is recommended, it is common for the government to almost always request more evidence in cases that are premium processed, as it buys the government more time to issue a proper decision in the case.  

A person who is approved can work starting in October that year.  Keep in mind if your candidate does not have another immigration status while waiting for the H-1B (such as F-1 visa etc), he or she should not remain in the United States while awaiting a decision on the visa, as he or she would fall out of status, which could make them ineligible for the visa. 

Hire a Top H-1B Visa Lawyer in Miami, Florida

Due to the complexities, timelines, and nuances of H-1B visas, we highly recommend working with an H-1B experienced immigration lawyer to make sure you have the best chance for your candidate to be selected.  

If you are looking to hire a top H-1B Visa lawyer to help you obtain an H-1B Visa in the United States, you’ve come to the right place. Immigration Lawyers USA are top immigration lawyers in Miami, Florida and are able to help you navigate the complexities of H-1B visas and help you throughout the process of winning your case. Give Immigration Lawyers USA a call at 305-501-0783 or contact us here to schedule your H-1B Strategy Session.