H-1B Visa

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.

• What is the H-1B visa?

• Advantages

• Disadvantages

• Requirements
• H-1B Cap

• H-1B Regular Cap

• H-1B Master's Cap

• Annual H-1B Cap Season

• H-1B Cap Exempt

• H-1B Statistics

• Application

• Responsible Authorities

• Application Period

• "Premium Processing" - Expedited application procedure

• Validity
• Visa for family members
• Alternatives to the H-1B Visa

What is the H-1B visa?

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.

What are the Advantages of the H-1B visa?

The H-1B skilled worker visa offers a number of benefits to both U.S. companies and foreign employees.

• Compared to E and L work visas, the requirements for the U.S. company are relatively low.
• The requirements for the applicants are much lower, i.e. the employees to be hired do not have to hold a management position in the U.S. company.

What are the disadvantages of the H-1B visa?

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.

What are the requirements for the H-1B visa?

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:

• lawyers
• engineers
• architects
• medical professionals
  

H-1B visa for medical professionals, architects & co.

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.

H-1B Cap

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":

H-1B Regular Cap

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.

H-1B Master's Exemption Cap

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:

1. The school must have been properly accredited by a nationally recognized accrediting agency.
2. It must be a public or non-profit educational institution.

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.

H-1B visas are limited in number

Annual H-1B Cap Season

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.

H-1B 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:

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.

Tip: A U.S. company can list up to 250 beneficiaries or employees per registration. Anyone wishing to enroll additional foreign personnel for H-1B pre-registration must complete another registration.

H-1B demand and lottery

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):

1. SubmittedThis status will be displayed beyond the end of the selection process. Properly submitted registrations that have not been selected will initially remain in the system with a "submitted" status and may theoretically be considered for selection until the end of the fiscal year (e.g., if a relatively high number of registrations do not result in actual filings with USCIS during the 90-day filing window). This is what happened in July 2021.
2. SelectedThis means that the egistration has been selected. The U.S. employer can file an H-1B petition for the current fiscal year.
3. Not SelectedThe registration was not considered for the current fiscal year.
4. DeniedIf more than one registration has been filed for the same beneficiary, this will invalidate all registrations for that individual.

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.

Review

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:

1. Conduction of the Regular Cap lottery, with all Master's Cap registrations being assigned to the Regular Cap lottery.
2. Conduction of the Master's Cap Lottery with those Master's Cap registrations not selected in the Regular Cap Lottery.

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.

H-1B Cap Exempt – Exceptions to the quota system

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":

• H-1B extension petitions, which are petitions for foreign individuals who are already in the U.S. under H-1B status or have been within the last six years
• H-1B petitions for foreign individuals already in the U.S. under H-1B status (or who have been in the U.S. within the last six years) in the context of a change of employer
• H-1B petitions by institutions of higher education and its branches under certain conditions (e.g., U.S. universities)
• H-1B applications from government-related or non-profit research institutes

H-1B Statistics

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.

*Number of H-1B registrations

Source: USCIS

The Office of Foreign Labor Certification (OFLC) regularly surveys the following fields:

1. Top 10 Occupations The IT industry occupations in the fiscal year 2020 ranked the top. Nearly one-third of all H-1B petitions were filed for application software developers. About 11% of all H-1B visas were filed for IT systems analysts, followed closely by software developers for systems software.
2. U.S. StatesFor several years, California has had the highest number of H-1B visa applications, followed by Texas and New York.
3. U.S. EmployersFinally, the applicants or U.S. employers were examined. Leading the list of top 10 principal applicants in fiscal year 2020 were Qualcomm Technologies, Inc, Cognizant Technology Solutions, US Corp, and Infosys Limited.

For complete statistics, visit the website of the U.S. Department of Labor, DOL.

Apply for an H-1B visa

Responsible Authorities

The H-1B visa application process is divided into what is generally a four-step process with different governmental responsibilities.

1. (Credential & Work Experience) EvaluationIf the prospective employee holds an academic degree (bachelor or higher) that was not earned at a U.S. university, the equivalence to the foreign qualification must be verified or confirmed in the course of an evaluation procedure.
   Such credential evaluations can be initiated by the usual evaluation offices in the United States. It must be a USCIS-recognized evaluation agency.
   If the employee does not have an academic degree, but through training and many years of work experience has specialized knowledge that can be compared to a U.S. university degree, a work experience evaluation must be arranged.
2. U.S. Department of Labor (DOL) – Labor Condition Application (LCA)In a second step, the labor condition application must be initiated by the prospective U.S. employer. This application is submitted through an online process via the FLAG system (Foreign Labor Application Gateway) on the U.S. Department of Labor website.
   The LCA is not to be confused with the labor certification (= labor market verification by the U.S. employer).
   With the H-1B visa, the U.S. employer does not have to prove that he / she could not find American workers for the advertised position. In the Labor Condition Application, however, the U.S. company must confirm, among other things, that the foreign employees will be adequately paid and that hiring them will not result in any disadvantages for U.S. personnel. A violation of the conditions made there can lead to severe financial penalties in case of a later inspection by the U.S. authorities.
3. U.S. Citizenship and Immigration Services – H-1B PetitionOnly after receiving the approved LCA one can file the actual H-1B petition: H-1B petitions are filed by mail at the appropriate U.S. Citizenship and Immigration Services (USCIS) service center in the United States. In addition to the extensive documentation on the U.S. company, the position offered and the qualifications of the foreign employee, this petition must also include the approved labor condition application from the U.S. Department of Labor.
   H-1B petitions are considered accepted after the USCIS has reviewed and certified that the application documents are complete and properly filed and the visa fee has been paid. The date of receipt is not the date of the postmark.
4. U.S. Consulate – Consular ProcessIf the USCIS application is approved, the U.S. company will receive an approval letter. In the final step, the prospective employee must go through the consular process in which the actual H-1B visa is issued (exceptions are only status extension or change of status procedures within the United States). The application is usually filed during a personal interview at the respective U.S. consulate in the home country.

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.

Application Period

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:

• If the U.S. Department of Labor has no objections, the LCA is approved within approximately 7 days of receipt.
• Once the U.S. Citizenship and Immigration Services (USCIS) has officially accepted an H-1B petition, the average processing times to final decision depend on the service center which is responsible. Regular processing takes two to twelve months. Alternatively, there is an expedited procedure (see the next parapgrah "Premium Processing").
• If the consulate procedure is still necessary and a personal visa appointment has to be made, please expect to receive your passport including your visa within one to two weeks.

"Premium Processing" – Accelerated application procedure

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.

Note: Due to the large volume of applications, the premium processing procedure is regularly suspended for a certain period of time during the cap season, which can extend processing times by several months. That is, many H-1B petitions in the past could not be filed under the Premium Processing procedure or expedited retroactively, but had to go through the regular processing time. However, this varies from year to year.

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.

How long is the H-1B visa valid?

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).

Visa for family members

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.

Special features:

• If the children reach the American age of majority (21), they must change their nonimmigrant status or leave the country.
• Spouses and children can attend private and public educational institutions on the H-4 visa.
• Spouses cannot obtain their own Employment Authorization Document (EAD) with the H-4 visa. Therefore, employment is generally not permitted, also not for children.

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).

Alternatives to the H-1B visa

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!