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Can you get an H1-B visa even without experience?
By Allan Wernick
H-1B status allows you to work for a U.S. employer for up to a total of six years. The USCIS will approve an H-1B petition in intervals of up to three years at a time.
You can get the visa with no experience, provided you have a four-year college degree or the equivalent in education and experience. You may have obtained your education and experience either here or abroad. You can even get H-1B status if you are or have been in the United States illegally, although you must leave the country to get the visa. You can't petition for yourself for H-1B status. An H-1B employer can be an individual, partnership or a corporation. To get H-1B status, your employer must pay you the greater of prevailing wage for the position or the wage paid to workers in similar positions in the company.
You don't have to be special
U.S. immigration law calls H-1B jobs "specialty occupations."
Nevertheless, you don't have to be "special" to get H-1B status, but you must have to have a four-year degree or the equivalent. Unlike most immigrant visa applications, your employer doesn't have to prove that no U.S. workers are ready, willing and able to do your job. Even if hundreds of people qualify for the position, your employer can choose you for the job and petition for you for H-1B status.
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The degree requirement
A key element in getting H-1B status is proving that the job the employer offers you customarily requires a four-year college degree as a condition of employment. Even if you have a degree, you cannot get an H-1B visa if the job does not require a degree.
Some professional positions almost always require a bachelor's degree or higher. Examples are school teacher, college or university professor, engineer, and architect. Some positions are not so obvious. The position of manager of a small shoe store would not normally require a specific bachelor's degree. So, you would have great difficulty getting H-1B status to be a shoe store manager. The position of accountant would usually require a degree in accounting and would support an application for H-1B status.
Take the example of a small manufacturing company that employs a secretary, a sales representative, a buyer, a manager and an engineer.
The secretary would probably not be considered a professional. The position rarely requires a four-year degree. The sales representative and buyer might be considered professionals, but only if the buying and selling require expertise normally acquired through a college education. An example, would be a job selling or buying engineering products or chemicals.
The manager may or may not be a professional. If the manager must understand international finance or law, and the volume of business justifies the manager spending most of his time using this knowledge, this may be an H-1B position. The manager's job might be considered professional if the job requires special knowledge normally acquired through a college education.
If the manager's job generally requires less than a college degree, the position will be considered non-professional. The position of engineer is usually considered a professional position, since to be an engineer you usually need a four-year college degree.
Proving you have the minimum qualifications
To get H-1B status you must possess the equivalent of a U.S. Bachelor's Degree or higher, or you must have the equivalent in experience and education combined. As discussed above, your education must be a customary requirement for your job.
Many professional evaluation services are available to help you find out the U.S. educational equivalence of your credentials. Some of these evaluation services will consider experience and on the job training as a substitute for education. So, for instance, if your education is only the equivalent of three years of U.S. college education and you have three or more years experience or on job training, a professional evaluator may conclude that you have the equivalent of a U.S. college degree. Depending on the qualifications of the evaluator, the INS may accept the evaluation as a substitute for a degree.
You must have an offer of employment
The USCIS will not approve an H-1B petition unless a U.S. employer or agent offers you employment. Your employer may be an individual, partnership, or corporation. Sometimes a corporation, solely or majority-owned by one individual, will petition for that same individual, claiming he or she is also an employee of the corporation. This is acceptable if the business is properly incorporated, the job offer is bona fide , and an individual meets all other requirements for an H-1B petition. However, the USCIS scrutinizes petitions by new corporations with limited capitalization to insure that someone didn't create the corporation solely to provide employment for an H-1B worker.
The Labor Conditions Attestation for H-1B workers
Prospective H-1B employers must get a "Labor Condition Application" (LCA) approved by the U.S. Department of Labor (DOL) before the employer can file an H-1B petition with the INS.
The employer must attest that the job is being offered at the higher of the prevailing or the actual wage for the position, that the employer is offering the job at the prevailing working conditions for other workers doing the same work at the facility, and that the employer has posted a notice of filing the H-1B attestation in two conspicuous locations at the place of employment or has notified the employee's bargaining representative. The employer must also keep records proving that the statements made in the Labor Condition Application are true.
Applying for H-1B status
The first step in your getting H-1B status is for your employer to determine the prevailing wage for the job. Your employer can get the prevailing wage by a request to the state Department of Labor or by using an independent authoritative wage survey or union contract. After determining the prevailing wage, your employer must post two notices regarding the filing of the H-1B petition in his or her place of business for ten business days or, where a collective bargaining agreement (union contract) covers the job, the employer must give notice to the workers' bargaining representative (union). Many employers use the Labor Condition Application form itself for the posting. Your employer must also show that he or she will pay you the higher of the actual or prevailing wage.
The employer files the Labor Condition Application (LCA) with the U.S. Department of Labor. Once the Department of Labor accepts your LCA, your employer can file the H-1B petition with the USCIS with supporting documents. The supporting documents should include a copy of the original accepted Labor Condition Application, proof of your educational background and/or experience, and the job description. If you are in the United States legally, you can apply to the USCIS to change your status to H-1B.
Once the USCIS approves the change of status, you can begin working for your employer. If you are abroad, the USCIS will send a notice of approval of the petition to a U.S. consulate and you can apply there for an H-1B visa. If you are in the United States out of status, you usually cannot change status. The notice of approval is sent to the U.S. consulate abroad where you plan to apply for an H-1B visa. If you have been in the United States unlawfully for more than 180 days, you may face a three-year bar to returning.
Other H-1B issues
The USCIS can approve an H-1B petition for up to three years. The USCIS can extend H-1B status for up to three additional years. In most parts of the country, petition approval will take a few weeks. In some parts of the United States , the USCIS may approve an H-1B petition more quickly, if your employer can establish a substantial business necessity for the expedited review.
It is worth repeating that your employer need not prove that no U.S. workers can fill the position. Unlike some other visas for employment in the United States , an employer can petition for H-1B status for an employee even if a qualified U.S. citizen or peraanent resident is available for the position.
PROFESSOR ALLAN WERNICK is a nationally recognized expert in immigration law and procedure. He is the author of the popular book " U.S. Immigration and Citizenship —Your Complete Guide, Revised Edition." He has served on the national Board of Directors of the American Immigration Lawyers Association (AILA) and president of its New York Chapter. He is also of counsel to the law firms of Glenn H. Bank in New York City, and Alan Diamante in Los Angeles, (213) 943-4555.
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