H-1B visa

The H-1B visa program for specialty nonimmigrant workers in the United States.

The H-1B visa temporarily allows U.S. companies to employ foreign workers in specialty occupations. A specialty occupation job requires the theoretical and practical worker application of a body of highly specialized knowledge, such as science, engineering, or accounting.

To qualify for an H-1B visa, the job must require at least a bachelor's degree or equivalent in that specialty field. The H-1B program helps U.S. employers hire foreign workers when they need help finding enough qualified American workers.

There are a limited number of new H-1B visas available every year. The annual cap is 65,000 for bachelor's degree holders and an additional 20,000 for foreign workers with an MBA master's or higher degree from a U.S. university.

Because demand for H-1B workers is higher than the limited supply of visas, U.S. Citizenship and Immigration Services runs a lottery to decide which employers can file H-1B petitions for prospective foreign workers. The H-1B visa is good for an initial period of three years, with a potential extension of up to 6 years total.

Eligibility Criteria for H-1B Visas

To be eligible for an H-1B visa program, the foreign worker must have a work offer from a U.S. company in a specialty occupation. A specialty occupation means a job that requires at least a bachelor's degree or equivalent in a specific field, such as engineering, science, accounting, or information technology.

Workers must prove they have the proper degree or qualifications for that specialized job. The job itself must also meet certain standards. It has to be a real position that truly requires someone with specialized knowledge. It cannot be a temporary or contract job.

The employer must show that despite making a reasonable attempt to recruit U.S. workers first, they could not find a qualified American worker to fill the role. The company must then agree to pay the H-1B worker at least the prevailing or actual wage for that position, whichever is higher.

Annual H-1B Visa Caps and Exemptions

There is a yearly limit on the number of new USA H-1B visas that can be issued, called the H-1B cap. For the regular H-1B visa, the current annual cap is set at 65,000. An additional 20,000 H-1B visas are available yearly for foreign worker nationals who have earned a master's (MBA) or higher degree from a U.S. university.

However, certain types of petitioners are exempt from the H-1B cap. That includes workers at higher education institutions or related non-profit organizations, non-profit research organizations, and government research organizations. H-1B workers petitioning to extend or amend their current H-1B status are also exempt from the annual cap.

The H-1B Visa Petition Process

The H-1B process begins with a U.S. employer filing a petition with U.S. Citizenship and Immigration Services (USCIS) for a specific foreign worker. The company first submits a Labor Condition Application (LCA) to the Department of Labor. With an approved LCA, the employer can file the actual H-1B petition with USCIS.

If the USCIS approves the H-1B petition, the foreign worker abroad can apply for the H-1B visa at any local U.S. embassy or consulate. Once the petition is approved, workers already in the U.S. on another visa status can change to H-1B. The whole process from L.C.A. to visa stamp can take several months.

H-1B Labor Condition Application (LCA)

Before a company can submit an H-1B petition, it must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA. is a vital part of the process to ensure American workers are not adversely impacted.

In the LCA, the employer attests that the H-1B worker will receive at least the prevailing wage for that position in the geographic area. The company also affirms that the working conditions for the H-1B employee meet the required standards. The LCA confirms that there is no labor dispute impacting the position.

Once the Department of Labor approves the LCA, the employer can file the H-1B work visa petition with all supporting documentation to USCIS. The LCA is a core mechanism to protect U.S. workers in the H-1B program.

H-1B Registration and Lottery System

Due to the minimal number of H-1B visas available yearly, USCIS has implemented an electronic registration system for U.S. employers before they can file H-1B petitions. During a designated registration period, companies must submit basic information about their business and each prospective H-1B worker they wish to sponsor. There is a $10 fee per electronic registration.

Suppose USCIS receives more registrations than the H-1B visa numbers available. In that case, they will run a computer-generated random lottery to select which registrations get a chance to proceed with filing complete H-1B petitions. Registrations not chosen in the lottery are disqualified for that year's H-1B cap season. This new system helps save time and costs for employers whose registrations have not been picked.

Wages and Working Conditions for H-1B Workers

H-1B workers cannot be paid lower wages than their U.S. counterparts. Employers must pay H-1B employees at least the actual or prevailing wage for that job in the geographic area, whichever is higher. The Department of Labor sets the prevailing wage rates.

The working conditions for H-1B visa holders must be similar to those for other workers in the company and geographic area. That includes hours, benefits, and general employment policies. H-1B employers cannot treat visa workers as lower-class employees compared to U.S. workers.

These requirements are in place to protect job opportunities, wages, and working conditions for the domestic U.S. workforce. The intent is that H-1B visa holders cannot be used as lower-cost replacements for American workers.

Economic Impact of H-1B Workers

Many economists argue that H-1B visa holders positively affect the U.S. economy and labor market. H-1B workers are highly educated and employed in specialized, high-demand fields like technology, science, and medicine, where talent shortages exist. Their skills can complement rather than displace American workers.

H-1B visa holders earn relatively high wages and spend and invest in U.S. communities. They often work for large companies that expand operations to support them. H-1B employees frequently go on to start their own businesses and create new jobs.

Studies show that a greater number of H-1B workers correlate with lower unemployment rates in fields that use them the most. Their innovation and contributions to patenting and breakthrough research can also drive economic growth. While the impact is debated, many experts see H-1B visa holders as a net positive economically.

Top Employers and Occupations for H-1B Visas

Major tech giants and consulting firms hire the highest number of H-1B workers. Amazon, Microsoft, Google, Apple, Facebook, and IBM are among the top employers sponsoring H-1B visas. Consulting companies like Accenture, Capgemini, Deloitte, and others also heavily utilize the H-1B program to bring in foreign talent for their workforce.

In terms of occupations, the H-1B visa is used most frequently for computer-related jobs like software developers, computer systems analysts, programmers, and other I.T. professionals. Engineers of various specialties like electronics, industrial, mechanical, and architecture also comprise a significant portion of H-1B visa holders.

H-1B Visa Transfers and Extensions

H-1B visas are initially given for up to 3 years but can be extended for a maximum of 6 years. If an H-1B worker wants to change jobs and work for a different employer, their new company must file a new H-1B petition, considered an H-1B transfer.

When approaching the 6-year maximum duration, some H-1B employees can apply for extensions beyond that limit if their green card process has been delayed due to per-country limits on employment-based green cards. That allows them to remain and work in H-1B until their green card becomes available.

The processes for extending an H-1B visa or transferring to a new H-1B employer are similar. The company must file new Labor Condition Applications and H-1B petitions with fees. If approved, the H-1B status is extended or transferred.

Transition from H-1B to Green Card

Many H-1B visa holders aim to ultimately receive lawful permanent residence (a green card) to remain indefinitely in the United States. The H-1B is considered a "dual intent" visa, meaning an H-1B worker can simultaneously intend to immigrate permanently while maintaining valid H-1B status.

The most common way for an H-1B visa holder to transition to a green card is for their employer to sponsor them for an employment-based green card, such as the EB-2 or EB-3 categories. The employer files a labor certification and Form I-140 petition with USCIS on the worker's behalf.

Once the I-140 is approved, the H-1B employee can apply for permanent residency adjustment when their priority date becomes current based on their country's backlog. This lengthy process while maintaining H-1B status can take many years. H-1B workers can also pursue green cards through other routes, such as family sponsorship by close relatives who are permanent residents or citizens. However, the most common path is employment-based green cards from their H-1B employers.

Family Members of H-1B Workers

H-1B visa holders can move their spouses and unmarried children under 21 to the United States as dependents. The spouse can apply for H-4 dependent visa status, while children are also eligible for the H-4 visa.

However, H-4 visa holders are generally only permitted to accept employment in the United States if they apply for it and receive an Employment Authorization Document (EAD) from USCIS. In 2015, a rule change allowed certain H-4 spouses of H-1B employees to apply for job authorization, which is evaluated on a case-by-case basis.

Recent Policy Changes and Updates

Under the previous administration, there were efforts to tighten the H-1B program through increased visa denials, stricter enforcement, and heightened eligibility requirements. However, many of these policies were challenged in court or reversed under the current administration.

More recently, in 2023, USCIS updated the electronic registration process for the annual H-1B lottery and expressed concerns about potential abuse of the system by employers filing multiple registrations per worker.

The government has also proposed dramatically increasing the fees for H-1B registrations and petitions in 2024 as part of an immigration fee overhaul. That could make the H-1B much more costly for employers.

Criticisms and Debates Around the H-1B Program

There are recurring debates about the impacts, policies, and existence of the H-1B visa program. Critics argue that H-1B workers undercut American jobs and wages, while proponents say they fill critical labor shortages. Some claim the lottery system is flawed and exploited by outsourcing companies. Others believe the program should focus solely on highly specialized workers rather than entry-level roles.

There are also differing views on whether family migration and employment for spouses should be restricted and if the visa duration needs to be revised or should provide a path to permanence.

Compliance Requirements for H-1B Employers

  • Obtain a certified Labor Condition Application (LCA) from the Department of Labor.
  • Payrate H-1B workers at least the prevailing wage for the position and location, as determined by DOL.
  • Provide working conditions for H-1B employees that are similar to U.S. workers.
  • Maintain detailed records of recruitment efforts to show no qualified U.S. workers were found.
  • Commit to providing return transportation if the H-1B worker is dismissed.
  • Be subject to potential audits and on-site inspections by authorities to verify ongoing compliance.
  • Face penalties, program debarment, or criminal charges if found violating program rules.

  • H-1B Worker Rights and Protections

    H-1B workers have certain fundamental rights and protections while employed in the U.S. Employers cannot discriminate against or exploit H-1B employees. They must uphold contracts and not terminate H-1B sponsorship improperly. H-1B visa holders cannot be treated differently than American coworkers regarding wages, hours, working conditions, and benefits. They have the right to change employers through approved visa transfers if abused.

    If issues arise, H-1B employees can report violations to the Department of Labor or seek legal assistance from worker advocacy groups. Common complaints involve lower wages than promised, excessive hours without overtime pay, or employers threatening deportation as control tactics. The government investigates credible allegations and penalizes offenders through fines or program disbarment to protect visa workers.

    International Student to H-1B Pathways

    Many international students who study in the United States want to stay and work here after graduating. One standard route is for these students to find a stable employer to sponsor them for an H-1B visa. That allows them to gain valuable work experience and a potential path to a green card.

    Some students may study specific majors or earn advanced degrees to increase their chances of getting an H-1B sponsorship from companies recruiting on college campuses. However, demand for H-1B visas consistently exceeds supply, so the path from student to H-1B worker is challenging and competitive for international graduates.

    H-1B Skills Shortage and STEM Talent

    The H-1B program aims to fill gaps in the American workforce when more qualified U.S. citizens or residents are needed to take specific jobs. That is especially true for science, technology, engineering, and math (STEM) occupations that require specialized education.

    Many tech companies say there is a significant shortage of STEM-skilled talent in the United States. The annual limit on H-1B visas makes it difficult for these firms to hire all the skilled foreign experts they need.

    Without sufficient talent through programs like H-1B, some argue the U.S. risks losing its competitive edge in cutting-edge industries. However, others believe American workers could often fill STEM jobs if adequately trained.

    Industry-Specific H-1B Data and Trends

    The H-1B program impacts different industries in unique ways. Technology companies, healthcare providers, universities, and outsourcing firms use H-1B visas for various jobs. Government agencies collect data on the number of H-1B petitions and approvals annually by industry.

    That shows where demand is highest. Trends over time also appear - for example, more H-1Bs are now being used for computer-related roles compared to past years. Understanding industry specifics helps people see how certain sectors might be affected if H-1B rules change. It also shows lawmakers where skills shortages exist most that the program aims to fill.

    H-1B Demand by State and Metropolitan Areas

    The need for H-1B workers varies greatly depending on location within the United States. Some states have many more technology hubs and companies that rely on H-1B talent. Cities like San Francisco, San Jose, Miami, Seattle, and New York file the most H-1B petitions yearly.

    Tracking H-1B data by state and metro area reveals where foreign-skilled professionals have the most significant economic impact. States with major tech or healthcare industries tend to sponsor the most H-1B visas. Examining demand regionally shows which local economies might struggle most if certain H-1B reforms limited the number of visas available to those areas.

    WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

    Resources / Helpful Links:

  • H-1B Specialty Occupations (USCIS)
  • H-1B Program (US Department of Labor)
  • H-1B Electronic Registration Process (USCIS)
  • Temporary Worker Visas (US Department of State)
  • Programa de visas H-1B (K & G Law, LLP)
  • Employment-based Immigration (K & G Law, LLP)
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