What Is the H1 Visa?

The H1 visa is a work permit visa that lets foreign nationals with special skills and education work in the United States. It's not a green card visa that will let you stay indefinitely, but it can last for up to six years. H1 visas are popular because they are easier to get than green cards.

Every H1 visa issued today is an H1B. There have been H1A and H1C visas in the past, but both were special cases created to fight nursing shortages and both are now out of use. However, you can still get a special H1B1 if you're a Chilean or Singapore national.

How Do You Get an H1B Visa?

The H1B visa is specifically for skilled people who want to work in the United States. As such, the minimum requirement is a bachelor's degree or an equal amount of education and work experience. Immigration officers usually consider three years of work experience equal to one year of formal education. You can also qualify if you have a foreign degree equal to a bachelor's or an unrestricted state license, registration, or certification that gives you the right to perform a specialty job, such as a license to practice medicine.

Next, the H1B applicant needs to have a specialty job waiting that needs this level of education. After all, the visa is for temporary employment. The jobs can be in one of several fields, including science, medicine, engineering, IT, architecture, business management, the arts, theology, and any other job that needs special skills and experience. There are several ways a job can qualify:

  • The job requirements specifically include having a bachelor's degree or higher.
  • Most people who perform the job need a bachelor's degree.
  • The employer normally demands a bachelor's degree for this sort of position.
  • The job is complex enough that most people would say you need a bachelor's degree to do it.

The employer is the party that must petition the government for the H1B visa. This makes them the visa's sponsor and comes with several obligations:

  • To pay the filing and legal fees and handle most of the paperwork.
  • To file a Labor Condition Application certified by the Department of Labor that shows they will provide wages and benefits that are equal or better than the normal rate to H1B visa holders. This includes vacation time, sick leave, and maternity/paternity leave.
  • To not use H1B employees to break strikes or replace native employees.
  • To pay the H1B employees even when they are "benched," or not on active duty.
  • To pay for any reasonable return transportation the employee needs to move back home if the job ends early and the employee doesn't resign (this doesn't apply to family members, however).
  • To let Immigration Services (USCIS) know when the job ends for any reason.
  • To have fewer than eight or under around 15 percent H1B employees. The exact number depends on the size of the company. A company can go over this limit, but it will receive more attention from the USCIS. Companies can avoid this attention if the H1B workers earn $60,000 or more each year or have at least a master's degree.
  • To allow employees both foreign and local to file complaints with the Department of Labor if needed.

If you want to acquire an H1B visa, your best bet is to join a multinational corporation with offices in your home country and the U.S. These companies can easily hire you locally and sponsor you from the US. This also means they can use an L1B employee transfer visa instead of an H1B.

What Can You Do With an H1B Visa?

Visa holders also have some rules they need to follow:

  • They must tell a lawyer and the USCIS if they plan to travel between countries to make sure all the paperwork is in order.
  • They must leave if they have no job. Visa holders can switch jobs as much as they want, but there is no grace period for job hunting. This doesn't apply if the visa holder is on strike.

Visa holders can bring spouses and children under 21 with them, but their visa status is H4. This means they can't work, but they can attend school and college, get a driver's license, and open bank accounts. They can also petition for an F1 visa to continue their education or find an employer that will sponsor a work visa.

H1B visa holders can also have "dual intent," which means they can have the temporary visa and stay in the US while they work to get a permanent green card.

The H1B visa is normally valid for up to three years, and it can go up to six if you apply for extensions. There are some exceptions:

  • If the H1B visa is five years old and the holder is waiting for a decision on an I-140 immigrant petition, he or she can get one- or three-year extensions until the judgment.
  • If the visa holder has an approved I-140 immigrant petition but it hasn't taken effect, he or she can get a three-year extension.

Even with these extensions, the absolute most an H1B visa can last is ten years, and that's only for jobs related to the Defense Department.

On the other hand, it can also last only as long as the job does and it will expire if you go home afterward. Still, you can also stay after your first job ends if you get another job in the same industry without leaving the United States. These employers also need to follow the law, which is why job applications always ask if you're a US citizen.

What Limits the H1B Visa?

If you have an H1B visa, you can't be a full-time student. There are other visas for that. You also shouldn't plan on getting a visa for certain, because the federal government issues only 85,000 H1B visas every year. In most years, the USCIS gets many more applications and has to hold a lottery to decide who gets them. Fortunately, this quota doesn't apply to H1B visa extensions or transfers.

  • 20,000 H1B visas are set aside for jobs and employees with master's degrees and above.
  • 6,800 H1B visas are kept separate as H1B1 visas for Chilean and Singapore workers. This is thanks to a pair of free trade agreements signed back in 2003.

If any of these visas are left over, they roll over into next year's quota. However, that's not something you can count on. On the other hand, there are some exceptions that let you avoid the annual quota:

  • Amended and resubmitted H1B petitions.
  • Jobs offered by institutions of higher education, including colleges and universities.
  • Jobs offered by nonprofit organizations strongly connected to institutions of higher education (such as private high schools and teaching hospitals) can avoid the quota if the job is related to the institution and part of a jointly managed program.
  • A foreign worker who earned an H1B visa within the last six years and hasn't been out of the country for more than one year.

Thanks to all these exceptions, the number of H1B visas approved every year is much more than 85,000. For instance, in 2015 the USCIS received 348,669 H1B petitions and approved 275,317, including 108,531 new and extended visas. Almost two-thirds of these approvals were for jobs related to computers and information technology, and 175,248 petitions came from medium and large businesses.

If all else fails, you can try to get a different visa like the TN, J1, L1A, L1B, E1, E2, E3, H2B, and H3 . You can also switch between the H1B and the F1 education visa depending on your higher education plans. Finally, if your H1B visa expires and you have no replacement, you must spend at least one year outside the United States before you can get a new H or L visa.

H1B visas also have wage and benefit limitations to make sure foreign workers don't undercut native workers. That's why H1B employers have to file reports and accept inspections to make sure the foreign workers get a wage equal to the average paid to native workers. They also get the same benefits, they can join strikes, and employers can't use them to break strikes.

Anyone can file a complaint against an employer who breaks these rules by sending Form WH-4 to the local Wage and Hour Division. Complaints may then be forward to the Office of the Inspector General, which will work with the Department of Justice to investigate the charges.

The fees for the H1B visa are also significant. The basic filing fee is only $460, but the average application can cost between $1,600 and $7,400 by the end, and there are also attorney fees of between $500 and $3000. If you're the person getting the visa, you usually don't have to worry about these fees, but if you're the company who wants to hire a foreign worker, you need to keep these fees in mind when you add up all the costs.

Frequently Asked Questions

  • Can an individual apply for an H1B visa?

No. The H1B visa is a temporary work permit, so the job sponsor must apply for the foreign worker.

  • When do applications start? When can someone with an H1B visa start working?

Applications begin on April 1 of each year. Foreign workers who get a visa can start working on October 1 of the same year.

  • How can an employer hire someone already in the United States with an H1B visa?

The new employer can fill out an I-129 petition with the federal government to bring on a foreign worker with an H1B visa. However, you should keep in mind that there can be no gaps in employment.

  • What happens to an H1B visa holder if the employer disappears or merges with another company?

If the visa holder can still do the same job for the new employer after a merger or sale, then nothing needs to happen. However, if the job changes significantly, that may be a violation and either the employer or the foreign worker should contact Immigration Services. If the job disappears, the visa holder has until the last day of employment to either find a new job with the same description or return home.

  • Does the H1B visa require a full-time job?

No. As long as there is an employer/employee relationship with a sponsoring US-based business, the H1B visa will stay valid. This includes full-time jobs, part-time jobs, and even a long-term suspension.

  • Where can I get an H1B visa stamp?

US consulates outside of the States will give an H1B visa stamp to applicants after a successful interview and a review of important documents. These documents include a photo ID, proof of education and work history, a valid passport, a letter from the job sponsor, and more, so make sure you ask for a full list of what you need. Also, keep in mind that you can't get an H1B stamp anywhere within the United States. Restamping an expired H1B visa goes through the same process, but you'll need a few more documents.

What Will Happen to the H1B Visa?

Work visas in general and H1B visas, in particular, are a sensitive political issue. That's why the H1B visa has an annual quota, strong labor protections, and a hard expiration date. Because of this, the laws surrounding the H1B visa tend to change every few years, especially after elections.

President Trump and congressional Republicans have promised to target the H1B visa in particular. This is because tech companies have been using the $60,000-salary loophole to bring in a large number of Indians to take over their IT departments. These foreign workers have graduated from American universities, but they tend to work for at least $20,000 less than native-born computer specialists. 70 percent of H1B petitions in 2014 were for Indian candidates, and Disney caused a scandal in 2016 when they replaced 200 IT employees with workers brought in from India while claiming they couldn't find any local talent.

Some bills set the minimum wage for the loophole to $100,000-$132,000 and drop the master's degree option. Another proposal is to cap the number of visas one employer can sponsor and demand proof that they tried to fill the spots with American workers first. A third is to get rid of the random lottery and award H1B visas to the highest paid jobs or to workers with American degrees. The USCIS is already suspending its fast-track processing.

However, others argue that the real problem is that America lacks STEM (science, technology, engineering, mathematics) graduates and needs foreign workers to fill the gaps. The computer and IT industries will add 488,500 jobs between 2014 and 2024, and not enough Americans are getting the right degrees to fill them. Companies like Google, Amazon, Microsoft, and Intel are desperate for skilled IT workers already. America attracts talent, and the H1B visa brings talented workers to American jobs.

The visa application process is a long and complicated one, especially considering how the H1B visa might change in the coming years. If you want to stay on top of things, you will find expert legal advice by posting your legal needs on UpCounsel. We only accept the best lawyers and firms in our marketplace, giving us an average of 14 years of experience with high-level degrees from places like Yale and Harvard. Whether you're a sponsoring employer or a temporary worker, we can help.