H-1B Visa Requirements: What Are They & How To Meet Them

This series is about the H-1B visa. 

When people hear about H-1B visa people think of two things. The first, it’s the superpower of the United States.

(0:09 – Michio Kaku on the H-1B visa)

“Some of you may not know this. America has a secret weapon. That secret weapon is the H-1B. Without the H-1B. the scientific establishment of this country would collapse. Forget about Google. Forget about Silicon Valley. There would be no Silicon Valley without the H-1B.”

(0:25) And the second thing is that it’s completely broken in every way possible. The intersection between these two conflicting forces is what’s causing this H-1B market failure that we see today. It’s affecting politicians, lawyers, and most importantly companies, and H-1B applicants themselves.

In this video, we’re going to talk about all of this and the key requirements on how to successfully get an H-1B if you’re a company or if you’re an applicant trying to find a creative solution to ensure that your case gets approved. Let’s get to it.

(Tsang logo splash)

(0:56) Hi everyone! My name is Joseph. I’m the managing partner here at Tsang & Associates where we solve legal problems with creative solutions. So the legal problem is the H-1B.

Let me give you some of the facts. The first thing to know is that H-1B is a lottery which means even if you are really, really qualified, if you are not selected, you just don’t get the job. 

So in 2018, there were 190,000 applicants that filed for the H-1B; In 2019, 201,000; 2020, 275,000; 2021, 308,000; and this year, in 2022, 483,000 people applied for the H-1B. Congress only allows 65,000 visas to be issued and if you have a Master’s degree, there’s an additional 20,000 reserved for those with a Master’s degree or a PHD. 

(1:43) Now, because the H-1B application is a lottery-based system that creates some interesting economic market failures that we see in society. Imagine if you are a company and you have all these employees that want this visa, well, if it’s a lottery, you don’t know if they’re going to be selected. If they’re not selected, then they can’t even work for you, right? And if they can’t work for you, then why would you spend all this time and energy and money to apply for this visa for them. That’s why most companies will bargain with law firms and use H-1B as a loss leader. “We’ll give you our other cases, but you have to do H-1Bs for all our potential employees for pennies.” Well, you know, a couple hundred dollars, a couple thousand dollars, but the amount of work that does, that actually is required to do a really good case is actually quite high. But in order to secure these contracts from these companies, then all these law firms are agreeing to do H-1B for super, super cheap in order to file.

Now, if you’re a law firm, you’re also running a business, then what do you do? You inevitably end up trying to do the bare minimum so that you don’t get sued in order to file for the H-1B. Well, if you are one of the lucky few that gets selected, then USCIS, the government, adjudicates your case, and then will issue a Request For Evidence, or will request for additional documentation for the law firm to prepare and then to give. So it delays the entire process. 

Now, if you didn’t know this, USCIS used to get a point for every action they do. So for example if a USCIS officer receives a case, if they issue a Request For Evidence, well that’s an action they did, then it’s off their plate for the officer. But now when they issue a request for offering evidence, they don’t get to check it off as a point. They only get a point if they get an approval or a denial, right? And so that causes the incentive for the officers to try to approve more or to deny more and try to avoid these Requests For Evidence.

If additional law firms are continuing to submit these barebone, bare minimum H-1B applications, then it causes the officer to just directly deny the case and that causes a major problem because then you have to do an appeal, a Motion To Reopen, which is additional headaches.

(3:59) Well, that’s the purpose of this playlist we’re going to go through different videos; talk about the specific cases, complex cases, and what are the creative solutions that we were able to help our clients to completely revamp the entire system. 

(4:11) Talking about challenging cases, what are the 4 requirements to prove an H-1B case. So H-1B, there are four things and as long as you meet one, you can qualify.

1. The first one: A bachelor’s or higher degree, or it’s equivalent, is normally the minimum requirement for entry in this particular position, right?
2. The second one: the degree requirement is common to the industry in parallel positions. Basically, what does everybody else do? Does every other company in your field hire somebody with a bachelor’s degree?
3. The third one: Does the employer normally require this degree or its equivalent for this position?
4. And the fourth: The nature and specific duties are so specialized and complex that the knowledge required to perform this duty is associated with the attainment of a bachelor or higher degree.

(4:59) In the following videos, when we dissect each individual case and we talk about their unique situation and the creative solutions, we’re going to talk about these four principles and how you apply all four to those cases. And so if you are looking for creative solutions for your H-1B application, whether you’re a company or you are a beneficiary an individual, you’re trying to get it, use all four, right? Provide it for your law firm because maybe they just can’t do it; they don’t have the resources; their attorney doesn’t even have time to talk to you…

So i hope this video will be able to help anybody who needs to prepare their case well. Enjoy!