The H-1B visa allows temporary employment for foreign individuals with an academic degree or equivalent and a corresponding U.S. job offer. However, the H-1B work visa has many pitfalls and hurdles due to strict entry requirements and numerical limitations.
The H-1B category is a traditional work visa for the United States, but it is reserved for highly skilled workers. The H-1B visa is applied for by specialized professionals such as engineers, scientists and architects who wish to work in the U.S. for a limited period of time.
The H-1B skilled worker visa offers a number of benefits to both U.S. companies and foreign employees.
The number of H-1B visas granted per year is limited (H-1B cap). Unfortunately, in the initial application H-1B visas regularly become unavailable within a few days in recent years. We therefore recommend checking whether another work visa can be applied for as an alternative.
The H-1B visa is company-specific, i.e. the official applicants are the U.S. companies for the future employees. Therefore, an indispensable prerequisite is a concrete job offer in the United States from a U.S. employer. With the H-1B visa, the foreign person can only work for the U.S. company that filed the application. Non-profit, governmental organizations, or educational institutions (e.g., U.S. universities) may also serve as petitioners.
The future H-1B position in the United States for the foreign employee must be "H-1B compliant", i.e. it must correspond to a Specialty Occupation. By definition of the U.S. authorities, this refers to professional fields in the United States that require at least a U.S. bachelor's degree or its equivalent in the field of activity. This includes highly qualified employees in the following occupational fields, among others:
Thus, only those individuals qualify for an H-1B visa who have at least a U.S. Bachelor's Degre or an academic degree obtained outside the U.S. as an equivalent. A combination of educational qualification and work experience that has been recognized as equivalent to a U.S. Bachelor's Degree is also possible and can be verified by means of so-called Foreign Credential Evaluations or Work Experience Evaluations in the United States.
The H-1B visa category is limited in number and is subject to the so-called H-1B Cap, which applies for one fiscal year at a time. The fiscal year, or FY for short, describes the period between October 1 of one year and September 30 of the following year.
A total of only 85,000 H-1B visas are available each fiscal year. While many well-known companies in the U.S., such as Microsoft and Google, have been in favor of expanding the H-1B program for years, the administration around former President Trump has been critical of the movement. Whether an increase in this quota can be expected under the new U.S. President Joe Biden remains to be seen.
The number of H-1B visas is split into two "H-1B caps":
|Type of cap||Amount of the cap|
|H-1B Regular Cap||65,000|
|H-1B Master's Exemption||20,000|
For each U.S. fiscal year, 65,000 H-1B visas can be granted in the H-1B Regular Cap for individuals who hold a U.S. bachelor's degree (or higher) or its equivalent from a U.S. university. Within this quota, however, 6,800 H-1B visas are still reserved for potential applicants from Singapore and Chile.
In addition, an H-1B Master's Exemption Cap with an additional 20,000 visas per fiscal year is available for individuals with a U.S. master's degree (or higher) from a U.S. university.
Note: Not all U.S. educational institutions automatically qualify for the H-1B Master's Cap. Two conditions are put on U.S. universities or U.S. colleges:
If either of these criteria is not met, the applicant does not qualify for the H-1B Master's Cap and the application would be denied. A thorough review in advance is therefore mandatory. In fact, foreign applicants may very well qualify for the regular H-1B cap.
However, if the first application in the Master's Cap is rejected, it is very unlikely that the U.S. company will be given a second chance in the regular procedure: Both H-1B caps are typically used up after only a few days. This means that a new application for an H-1B visa would only be possible one year later.
The H-1B Cap Season for the U.S. fiscal year 2022 (FY 2022) started on April 1, 2021, from which date U.S. companies or organizations can file their petitions for H-1B visas for foreign employees within 90 days, i.e. until June 30, 2021, with a start date of October 1, 2021 (= earliest possible start of work).
Requirement: The H-1B petition is based on a valid, randomly selected registration and is filed for the beneficiary named in the corresponding selected registration.
For initial filings, U.S. employers were required to register for a fee via the USCIS online portal from March 8, 2021 through March 26, 2021. A non-refundable H-1B Electronic Registration Fee of $10 is due per employee or per registration. The advantage for U.S. employers who are not selected for H-1B pre-registration is that – compared to the previous selection process – it will save the effort for compiling the H-1B file. H-1B pre-registration is neither particularly costly nor complex.
The H-1B registration requires the following information:
|U.S. employer (petitioner)||
|foreign employee (beneficiary)||
Duplicate or erroneous entries may be deleted by U.S. companies up until the registration deadline in order to re-register for a fee the employee in question. Once the registration period is completed, duplicate entries for the same employee will automatically invalidate all registrations for that individual for the fiscal year 2022.
Demand for the H-1B category regularly exceeds the supply of the numerically limited H-1B visas, so a computer-generated random selection process is used. A drawing will be held to determine those individuals for whom H-1B petitions may be filed.
As expected, the U.S. Citizenship and Immigration Services had received enough electronic registrations for fiscal year 2022. A random selection procedure was used in March 2021 to pick and notify those eligible to file an H-1B petition for the beneficiary referred to in the registration from the total of properly filed registrations. In doing so, the amount of H-1B applicants randomly selected by USCIS is sufficient to reach the H-1B cap (FY 2022).
The USCIS announced that it has selected additional registrations to achieve numerical allocations for Fiscal Year 2022. On July 28, 2021, a random selection process was again conducted from the previously submitted electronic registrations. The deadline for submission of registrations selected on July 28, 2021 begins on August 2, 2021 and ends on November 3, 2021.
Once the H-1B lottery has been conducted, one of the following four statuses will be available in the online H-1B registration profile for each registration (i.e., for each registered beneficiary):
The status in the online profile of H-1B registrations selected in the second lottery has been updated accordingly (from "submitted" to "selected").
Important: The draw in the H-1B lottery does not automatically include the approval of the H-1B petition by the USCIS. It only means that the application will be processed by the U.S. authority.
In 2020, U.S. Citizenship and Immigration Services announced the receipt of approximately 275,000 registrations to participate in the U.S. Regular Cap and Master's Cap lotteries under the annual H-1B quota. USCIS received the highest H-1B lottery entries ever recorded, so the chance of being considered in the H-1B selection process was lower than ever.
The USCIS has indicated that approximately 46% of all H-1B registrations were for individuals with a U.S. master's degree or higher. More than 40,000 registration accounts were created and nearly 81% of the H-1B registrations filed were for potential beneficiaries from India (67.7%) and China (13.2%).
Due to the impact of the coronavirus, there were delays (e.g., data entry) by the USCIS in 2020. In addition, given the closures and loss of business due to the COVID-19 pandemic, some U.S. employers chose not to file their H-1B applications during last year's filing round. For this reason, the H-1B quota for fiscal year 2021 of 85,000 was not filled after all. The USCIS had therefore conducted another lottery on August 11, 2020. The "drawn" companies were notified accordingly and could file H-1B petitions again starting August 17, 2020 in a time frame of 90 days.
Since 2019, he lottery selection process has been conducted in reverse order so that candidates with a U.S. master's degree or higher have a greater chance of selection:
Beginning in fiscal year 2023, changes to the H-1B registration system and selection process will again be implemented.
We advise applicants whose H-1B petition was not considered in the lottery process on possible alternative visa options. Contact us for an individual offer.
Not all H-1B petitions are affected by the quota system or numerical limitation. The following H-1B petitions can always be filed with the USCIS, and are therefore "cap exempt":
The popularity of the H-1B visa for highly skilled workers continues undiminished: For many years now, several hundred thousand H-1B petitions have been received by the USCIS in a very short period of time.
|fiscal year||Application stop date||Working days until filing stop||H-1B initial applications under the cap|
|Apr 4, 2019||5||201,111|
|Apr 6, 2018||5||190,098|
|Apr 7, 2017||5||199,000|
|Apr 7, 2016||5||236,000|
|Apr 7, 2015||5||233,000|
|Apr 7, 2014||5||172,500|
|Apr 5, 2013||5||124,000|
|Jun 11, 2012||49|
|Nov 22, 2011||162|
|Jan 26, 2011||205|
|Dec 21, 2009||182|
|Apr 7, 2008||5||163,000|
|Apr 3, 2007||2||123,480|
|Mai 26, 2006||39|
|Aug 10, 2005||91|
*Number of H-1B registrations
The Office of Foreign Labor Certification (OFLC) regularly surveys the following fields:
For complete statistics, visit the website of the U.S. Department of Labor, DOL.
The H-1B visa application process is divided into what is generally a four-step process with different governmental responsibilities.
Note: All H-1B applicants should pay close attention to send all correspondence to the appropriate USCIS service center in order to avoid problems with the application. You can find the correct USCCIS service center on the official USCIS website.
The H-1B visa is a complex and time-consuming application process. On average, the entire application process takes between 3 and 13 months. The processing times are roughly divided as follows:
Generally, for all petitions filed with the USCIS using Form I-129 (Petition for a Nonimmigrant Worker) – including the H-1B visa – there is an opportunity to expedite the lengthy processing times.
This is possible with Form I-907 (Request for Premium Processing) and an additional fee of currently 2,500 U.S. dollars. The advantage of the Premium Processing process is that the USCIS guarantees applicants a response within 15 days. The response usually includes an approval, a request for evidence (RFE), or a denial.
All other I-129 nonimmigrant petitions (such as L-1 or O-1) and H-1B extension petitions can usually use the Premium Processing procedure as usual.
The H-1B visa is approved for a maximum of three years in the initial application and may be extended for another three years. The maximum duration of stay of six years may only be exceeded if an employment-based green card has been applied for in time by the U.S. employer (= AC-21 rule).
Spouses and unmarried children under the age of 21 are eligible for a derivative H-4 visa upon application for the same period as the principal applicant.
In exceptional cases, it is possible to apply for an EAD if the spouses (with H-1B status) are already in an ongoing immigration status adjustment procedure (green card process).
There is no blanket solution for applicants whose H-1B petition could not be considered by USCIS.
One strategy that U.S. employers follow is to file H-1B petitions that do not fall under the so-called H-1B cap or to focus on an Optional Practical Training (OPT) for F-1 visa holders. However, this "substitute" is not available to all U.S. employers.
Finally, there are other work visas to consider. For example, in some cases, applying for an L-1 visa or O-1 visa may be considered.
Looking for an alternative to the H-1B visa?Our visa experts will clarify which work visas are suitable for the employment of your employees. Contact us now!