H1A vs H1B: Key Differences, Requirements, and Legal Guidance

Key Takeaways

• The H1A visa was a nonimmigrant visa for foreign nurses; it was discontinued in 1997 and replaced briefly by the H1C.
• The H1B visa is for professionals in specialty occupations and remains active with strict educational and employer sponsorship requirements.
• The term H1A vs H1B typically refers to historical vs. current use of temporary work visas for specialized professions.
• H1B visas have a strict annual cap, require a bachelor’s degree or equivalent, and are employer-sponsored.
• Spouses and children of H1B visa holders may enter the U.S. under H4 status, with limited rights.
• H1A and H1B differ in purpose, duration, qualifying roles, and target professions.
• You can seek legal guidance on UpCounsel if you need help determining your visa eligibility or petitioning process.

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. 

H1A vs H1B: Historical and Functional Differences

The H1A vs H1B comparison highlights the evolution of U.S. temporary work visa programs. While the H1B visa remains in use today, the H1A visa was a discontinued program once aimed specifically at addressing nursing shortages.

H1A Visa Overview (Discontinued):

• The H1A visa was created through the Immigration Nursing Relief Act of 1989.
• It was designed specifically for foreign registered nurses to fill critical shortages in U.S. hospitals.
• The program had strict conditions, including Department of Labor certification proving a genuine nursing shortage.
• It expired on September 1, 1995, with final use ending in 1997.
• The H1A was replaced by the H1C visa, which also targeted nurses but was more restrictive and ended in 2009.

H1B Visa Overview (Current):

• Introduced under the Immigration Act of 1990, the H1B visa supports employment in specialty occupations.
• Applicants must have a bachelor’s degree or equivalent experience, and a U.S. employer must sponsor the visa.
• Common industries include technology, engineering, medicine, education, and finance.

Key Differences Between H1A and H1B:

Despite the discontinuation of the H1A visa, the topic "H1A vs H1B" remains relevant for those researching historical policy shifts, changes in visa strategy, or evaluating nursing immigration paths over time. 

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.

Alternatives to the H1B Visa for Skilled Workers

Because of the annual cap and high demand for H1B visas, many skilled professionals seek alternative visa options that align with their qualifications and professional goals. These include:

• L-1B Visa: For employees transferring within a multinational company with specialized knowledge.
• O-1 Visa: For individuals with extraordinary ability in their field (e.g., arts, sciences, education, athletics).
• TN Visa: For Canadian and Mexican professionals under NAFTA/USMCA.
• E-3 Visa: Exclusive to Australian nationals in specialty occupations.
• H1B1 Visa: Similar to H1B but specifically for Chilean and Singaporean nationals under trade agreements.

These visas may have different eligibility requirements and quota systems, so legal consultation is recommended. 

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 a 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 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, some exceptions 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 that wants to hire a foreign worker, you need to keep these fees in mind when you add up all the costs.

Recent Policy Changes and Trends Affecting H1B Visas

U.S. immigration policy, especially surrounding H1B visas, is subject to frequent review and reform. Recent trends and proposals include:

• Increased wage requirements to prevent undercutting of U.S. workers.
• New selection criteria favoring higher-paid and U.S.-educated applicants over a random lottery.
• Enhanced enforcement of compliance obligations by H1B employers, including stricter audits and site visits.
• Digitization of the H1B process, including an online registration system introduced by USCIS to streamline filings and reduce fraud.

Policy changes aim to balance economic demand for skilled workers with the protection of domestic labor markets. Employers and applicants should remain updated on regulatory changes that may affect visa eligibility or processing times. 

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 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.

Frequently Asked Questions

1. What happened to the H1A visa?
   The H1A visa, created to address nurse shortages, was discontinued in 1997 and is no longer available.
2. Is the H1B visa only for tech jobs?
   No. While tech roles are common, H1B visas are also used in healthcare, education, finance, and engineering.
3. Can nurses apply for an H1B visa?
   Yes, but it is more difficult. The job must qualify as a specialty occupation requiring at least a bachelor’s degree.
4. What is the difference between H1A and H1B visas?
   The H1A was for nurses and is no longer active. The H1B is for various skilled occupations and remains widely used.
5. Are there other ways to work in the U.S. if I don’t get an H1B visa?
   Yes. Consider alternatives like the L-1, O-1, TN, or E-3 visas, depending on your background and nationality. 

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