H-1B Visa for Irish Professionals and US Employers

Yes.

H-1B eligibility is not based on Irish nationality.

An Irish professional may qualify if:

• the US position is a specialty occupation;
• a qualifying US employer will sponsor the petition;
• the employee meets the education, licence or equivalent qualification requirements; and
• the case satisfies the other applicable H-1B rules.

This differs from E-1 and E-2 visas, where treaty nationality is a central requirement.

Many first-time H-1B petitions are subject to an annual numerical limit.

The statutory regular H-1B cap is 65,000. An additional 20,000 places are available under the US advanced-degree exemption for qualifying beneficiaries who hold a master’s degree or higher from an eligible US institution.

When USCIS receives more eligible registrations than the available numbers, a selection process is used.

Selection allows the employer to file a cap-subject H-1B petition. It does not mean the petition has been approved.

Employers seeking many cap-subject H-1B visas first participate in USCIS’s electronic registration process.

USCIS currently uses a beneficiary-centric selection system. Each unique beneficiary is entered into the selection process once, even if more than one employer submits a legitimate registration for that person. If the beneficiary is selected, eligible registrants may file the associated H-1B petition during the designated filing period.

For employers working towards a fixed US start date, the cap can create a significant planning constraint.

A business should therefore determine whether the case is cap-subject before treating H-1B as the assumed route.

No.

Some H-1B petitions are cap-exempt.

This can include qualifying employment with:

• institutions of higher education;
• certain nonprofit organisations related to or affiliated with institutions of higher education;
• nonprofit research organisations; and
• governmental research organisations.

Certain people who have already been counted against the H-1B cap can also file later H-1B petitions without being counted again, subject to the applicable rules.

A cap-exempt case can therefore have a very different timeline from a first-time cap-subject H-1B.

H-1B may be worth assessing where a US employer has identified a professional in Ireland for a specialised US role and other routes do not fit.

For example, the employee may not have the one year of qualifying overseas employment required for an L-1 transfer.

The company may not have the Irish treaty ownership and investment structure needed for E-2.

The person’s professional record may not meet the O-1 extraordinary-ability standard.

In that situation, H-1B may provide the appropriate route if the job qualifies as a specialty occupation and the employer can meet the H-1B requirements.

A typical case involves several stages.

First, the employer identifies the position and determines the appropriate wage.

The employer then obtains a certified Labor Condition Application from the Department of Labor.

After LCA certification, the employer files Form I-129 with USCIS.

If the petition is approved and the employee needs an H-1B visa, the employee proceeds through the Department of State visa process.

Current State Department guidance directs nonimmigrant visa applicants to schedule their interview in their country of nationality or residence. An applicant resident in Ireland would therefore ordinarily apply through the US Embassy in Dublin.

H-1B petitions are commonly approved for periods of up to three years.

The general maximum period in H-1B status is six years, although immigration law provides circumstances in which qualifying workers progressing through the employment-based permanent-residence process may remain beyond six years.

The employee’s previous time in H or L status and time spent outside the United States can also affect the calculation.

Long-term immigration planning should therefore begin before the employee is close to the normal maximum period.

Potentially.

A new US employer can file its own H-1B petition for a qualifying employee.

Where the employee is already in valid H-1B status and meets the applicable portability requirements, they may in some circumstances begin work for the new employer after a properly filed petition is received by USCIS rather than waiting for final approval.

Whether that rule applies depends on the employee’s immigration history and the filing.

A qualifying spouse and unmarried children under 21 can generally apply for H-4 dependent status.

H-4 status does not automatically give every spouse permission to work.

Only certain H-4 spouses are eligible to apply for employment authorisation, generally in connection with specified stages of the H-1B principal’s employment-based permanent-residence process.

The family’s employment and relocation plans should therefore be considered before the move.

Not automatically.

H-1B is a temporary nonimmigrant classification, but an H-1B professional may later qualify for employment-based permanent residence.

Depending on the employee and position, that might involve an EB-2 or EB-3 employer-sponsored case or, in some circumstances, another immigrant category.

H-1B law also permits certain extensions beyond the usual six-year maximum where qualifying permanent-residence steps have reached specified stages.

Flynn Hodkinson advises US employers, Irish companies and professionals on H-1B visa matters.

We can assess whether the proposed position qualifies as a specialty occupation, review the employee’s qualifications, advise on cap and cap-exempt issues, assist with the Labor Condition Application and petition, guide the employee through the visa stage and compare H-1B with L-1, E-2, O-1 or permanent immigration options where appropriate.

The purpose is to identify whether H-1B actually fits the position and timeline before the company builds its plans around it.

Flynn Hodkinson does not recruit employees or help individuals obtain US job offers.