The H-1B visa: Facts, requirements, processes

The H-1B visa allows U.S. employers to hire foreign professionals to work in the U.S. when qualified Americans cannot be found. Here are the requirements, processes and latest changes to this program.

What is the H-1B visa? Requirements, processes and FAQs

The H-1B visa program is probably the most well-known U.S. federal employment visas, and arguably the most controversial. Businesses say it’s too restrictive. Labor organizations complain that it displaces U.S. workers and lowers their wages. Some politicians use it to appeal to their base with scant ability to fix the process to the benefit of all. But the truth lies somewhere in between these extremes.

The following overview of the H-1B visa is accurate as of the publication date. Be aware that the rules and internal business processes of the H-1B visa are complex. Either could be changed by legislation, executive order, or internal process reviews. For the latest rules, consult the Department of Labor (DoL), U.S. Citizenship and Immigration Services (USCIS), or a legal firm specializing in immigration.

What is the H-1B visa?

The H-1B visa allows U.S. employers to hire foreign national professionals to work in the U.S. when qualified Americans cannot be found. The H-1B visa holder can work only for the sponsoring employer or the visa will be revoked. The visa was created in 1990 when Congress expanded the 1965 Immigration and Nationality Act and is not a direct path to citizenship.

According to the Department of Labor website, "The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States."

H-1B visa requirements

To be eligible for an H-1B visa, professionals from other countries must work in a “specialty occupation” that requires “theoretical and practical application” of a unique body of knowledge and hold at least a bachelor’s degree, or equivalent, in the discipline. IT, engineering, medicine, math, law accounting and other difficult-to-master occupations are eligible for H-1B visas. Fashion models without a degree but of “distinguished merit and ability” may also work in the U.S. with an H-1B visa, as well as artists, graphic designers, videographers and some writers, according to USCIS.

H-1B visa process

To obtain an H-1B visa, an employer must complete the following steps:

  1. File a Labor Condition Application (Form 9035E/ 9035)with the Department of Labor. The employer demonstrates adherence to the H-1B, H-1B1 or E-3 program requirements. The employer must attest that qualified Americans are not available and that wages to be paid are at least equal to the prevailing wage and to wages paid to others in similar positions within the company.
  2. Following approval of the Labor Condition Report, the employer must file a Petition for a Nonimmigrant Worker (Form I-129)with the S. Citizenship and Immigration Services (USCIS), along with supporting documentation and payment, through an online portal. Employers must provide their legal company name, company business, EIN, and address, as well as the authorized representative/signatory of the company’s full name, title, phone number and address. Companies must then add information for each “beneficiary,” referring to potential H-1B visa holders the company wants to sponsor. USCIS asks for the beneficiary’s legal name, male/female gender (only options available), date of birth, country of birth, country of citizenship, passport number and whether they currently hold a U.S. master’s degree. There is a $10 fee for each petition filed, and companies can submit up to 250 petitions. If selected, companies have 90 days to then complete and submit their workers’ full application.
  3. After the Petition for a Nonimmigrant Worker is approved, the named worker can apply for the actual H-1B visa. The approved visa will allow the individual to enter the U.S. If the individual is already in the U.S legally, the actual H-1B visa is required if the employee wants to leave and reenter the U.S.

H-1B visa quotas

The H-1B visa program is limited to 85,000 qualifying foreign workers. Currently, that number includes 65,000 individuals with a bachelor’s degree or equivalent and 20,000 additional individuals eligible to work under the H-1B advanced degree exemption, but the process is changing.

This year, to increase the number of advanced degree holders approved for H-1B visas, USCIS will select H-1B applicants from a single pool, instead of separating applicants based on their education level. After regular H-1B visas are awarded via the lottery system, USCIS will select workers for the advanced degree exemption from the applications left over. While the total number of available visas will not change, USCIS expects this change to increase the number of visas given to applicants with U.S. master’s degrees or higher by 16 percent.

Additional visas are sometimes authorized under the H-1B program. Under the American Competitiveness in the Twenty-First Century Act of 2000, universities and research facilities are sometimes allowed to hire H-1B holders who are not counted in the limits above.

In addition, the USCIS states that individuals with H-1B visas working in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may not be counted in the H-1B cap. Since the rules can change frequently, consult the Department of Labor for the most recent updates.

Individuals must have a relevant degree from a public or not-for-profit university located in the United States. The school must be properly accredited by a formally recognized accrediting organization such as the Accrediting Council for Independent Colleges and Schools or the Accrediting Council for Continuing Education and Training. For more information visit the U.S. Citizenship and Immigration Services (USCIS) website.

H-1B visa impacts on U.S. workers

Much attention has been drawn in the past decade to numerous instances of H-1B abuse. Firms that have twisted the intent of the program to hire inexperienced workers at lower pay, outsourcers that have flooded the applicant pool, IT workers needing to train H-1B replacements — incidents such as these have only fueled controversy around the H-1B visa’s impact on U.S. workers.

Contrary to popular belief, however, foreign national talent, including that working in the U.S. under the H-1B visa program, has a net positive impact on the labor market, according to the American Immigration Council. Skilled immigrants’ contributions help create jobs and opportunities for expansion through innovation, and despite suggestions to the contrary, H-1B workers do not drive down wages of native-born workers; in fact, some studies show a positive impact on wages overall.  

From 2009 to 2011, wage growth for U.S.-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher. For example, in the Computer Systems Design and Related Services category, there has been a 5.5 percent wage growth since 1990 and a 7 percent wage growth since 2009. In comparison, wage growth across all industries has been 0.8 percent since 1990 and 1.6 percent since 2009.

Despite such evidence, politicians have introduced legislation to protect Americans from being displaced by H-1B visa holders. In April 2017 the DoL increased coordination with Homeland Security, the Department of Justice and other government agencies to investigate possible discrimination. In October 2018 the DoL updated the Labor Condition Application(Form ETA-9035) and the worker complaint for (Form WH-4) to increase transparency.

These changes intend to improve H-1B compliance and promote greater transparency regarding the employment of foreign national workers, according to DoL. The Labor Condition Application form now require employers to provide more detailed information about H-1B worker employment conditions, including:

  • Disclosing all places of employment for H-1B workers, including periods of short duration
  • Providing the estimated number of H-1B workers at each place of intended employment
  • Requiring clear identification of secondary entities who are using H-1B workers
  • Requiring H-1B dependent employers who claim an exemption based on education, such as a master's degree, to provide documentation of the degree

Revisions to the worker complaint form included additional data fields designed to better describe the nature of an alleged program violation. Finally, the USCIS has established an email address for individuals to submit ideas for improvement or tips regarding potential violations.

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