In our previous articles in the H-1B series, we have covered the requirements for the employers and positions of H-1B workers. In this article, we will discuss the basic requirements an employee must meet to get an H-1B.

Education

An alien must have at least a bachelor’s degree, or equivalent professional or educational experience. The alien must fulfill this requirement when the H-1B application is submitted. Foreign degrees count if they are evaluated as equivalent to U.S. degrees.

Here are some examples of H-1B applicants who meet the education requirements:

• Mr. Chen has a bachelor’s degree in chemical engineering from a university in the United States. He would like to work as an engineer for an oil company. Mr. Chen has already obtained his degree, so he will meet this requirement when he files for his H-1B.

• Ms. Gupta is a computer programmer who would like to work for a software development company. She has already obtained her master’s degree in India, and it has been evaluated as equivalent to a U.S. master’s degree.

Advanced-Degree Quota

A bachelor’s degree or equivalent professional/education experience is the minimum for an H-1B. However, keep in mind that if you have received a master’s degree or higher from a U.S. institution, you can be granted an H-1B visa under the advanced-degree quota.

For example, both of these people would qualify for the advanced-degree quota:

• Mr. Kumar would like to work as an engineer for a manufacturing company. He obtained an M.S. in Mechanical Engineering at a U.S. university.

• Ms. Gao is a biomedical researcher who would like to work for a pharmaceutical company. She will fulfill her Ph.D. requirements at a U.S. university on April 1, 2008. Though she has not received her Ph.D. yet, she will be able to apply for an H-1B because she passed her thesis defense and finished all the requirements for her degree. In this case, the university needs to issue a letter to state that she has fulfilled the requirements for her Ph.D.

People who have obtained an advanced degree in Canada (and have not obtained one in the United States) do not qualify for the advanced degree quota. For example, Dr. Kim obtained his master’s degree and Ph.D. from the University of British Columbia. His degrees were evaluated as equivalent to U.S. master’s and Ph.D. degrees. However, Dr. Kim will not be eligible for the advanced-degree quota, since he did not obtain an advanced degree from a U.S. university.

Last year, the normal H-1B quota was filled on the very first day that USCIS accepted applications, whereas the advanced-degree quota remained open for four weeks, and the vast majority of applicants in this category did not have to submit to a lottery system (only the advanced-degree applications received on the day the quota ran out were subject to a lottery system).

So if you qualify for this category, make sure to mention your degree on your application. Your chance of being allotted a spot under the quota will be much higher if you qualify for the advanced-degree quota.

Status

To successfully apply for an H-1B, you must have held legal status for the entire time you have been in the United States.

You must also prove that you will have legal status up to and including September 30, 2008—right before the H-1B visa goes into effect on October 1.

If you cannot prove this, your employer may still submit your H-1B application. However, when your H-1B application (not your change of status application) is approved, you must leave the United States, apply for an H-1B visa at a U.S. consulate, and reenter the United States using the H-1B visa.

If your status will expire before September 30 of this year, and leaving the United States seems too costly, you might consider enrolling in an F-1 program or changing to another status.

For example:

• Ms. Park’s OPT status will expire on June 15, 2008. Even with her 60 day grace period, her status will expire on August 14, 2008. She plans to travel to her home country and obtain her H-1B visa from her home country’s U.S. consulate. She will use her H-1B visa to enter the United States and start her new job

• Mr. Hu’s OPT status will expire on May 15, 2008. Before April 1, Mr. Hu will enroll in an F-1 program, which will give him legal status up to September 30.

Let Zhang & Associates Help You Through the H-1B Process

Zhang & Associates’ immigration attorneys can give you more information about H-1B requirements and how they apply to you. We can also ensure that your complete and accurate H-1B petition arrives at USCIS on April 1, 2008, giving you the best possible chance of approval.

If you plan to file an H-1B petition in 2008, you can email us at @hooyou.com">freeevaluation@hooyou.com for a free consultation with one of our experienced immigration attorneys. We respond to most inquiries within 24 hours.