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The H-1B visa allows temporary employment for foreign nationals with an academic degree or equivalent and a corresponding US job offer. However, the H-1B work visa has many pitfalls and hurdles due to strict entry requirements and numerical limitations.
Visa category: Work visa
Target group: Highly qualified specialists and staff with an academic degree (at least a Bachelor's degree)
Validity: up to 3 years, extendable once for a further 3 years
Length of stay: up to 3 years per entry
Special features: limited to 85,000 visas per tax year, partial lottery procedure, complex application
The H-1B category is a traditional work visa for the U.S., but is reserved exclusively 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 visa is company-bound, i.e. the official applicants are the US 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 US company that filed the application. Non-profit, governmental organizations or educational institutions (e.g., U.S. universities) may also act as petitioners.
The future H-1B position in the US for the foreign employees must be "H-1B capable," meaning it must correspond to a Specialty Occupation activity. By definition of the US authorities, this means occupational fields in the US that have at least one US Bachelor's Degreeor a corresponding equivalent in the field of work. This includes highly qualified employees in the following occupational fields, among others:
Thus, only those individuals who have at least a US bachelor's degree, or an academic degree earned outside the U.S. as an equivalent, qualify for an H-1B visa. Also, a combination of educational qualification and work experience that is considered equivalent to a US Bachelor's Degree recognized is conceivable and can be achieved by means of so-called Foreign Credential Evaluations respectively Work Experience Evaluations be demonstrated in the United States.
With an H-1B visa, foreign nationals are officially granted permission to travel to the USA for up to three years, which theoretically allows them to work and live in the USA for several years. However, the actual length of stay is determined individually by the US immigration authorities when applying for the visa and possible extensions. An extension of H-1B status is done by filing an application with the US Citizenship and Immigration Services (USCIS).
US travelers must leave the United States no later than the last day of their authorized stay in order to avoid the risk of an illegal stay (overstay). However, under certain conditions, such as an ongoing green card process, it is possible to further extend or change the stay.
As a rule, the H-1B visa is issued for a period of three years. This duration of stay can be extended by a further three years under certain conditions, so that a maximum total duration of stay of six years is possible.
The maximum duration of stay of six years may only be exceeded if a residence perm Employment-related Green Card was applied for by the US company (= AC-21 rule) in good time.
The expiration date can be found on the visa in the passport. The H-1B visa is valid until this date expires. After this date, the H-1B visa can be reapplied for through consular channels if required.
The H-1B visa category is limited in number and is subject to a quota system, known as the H-1B cap, which applies for one US tax year at a time. The US tax year or Fiscal Year, or FY, 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 per fiscal year. While many well-known companies in the US, such as Microsoft and Google, have been advocating an expansion of the H-1B program for years, the US authorities and some US associations remain critical of this movement.
The number of H-1B visas is distributed among two H-1B quotas:
| CAP TYPE | CAP AMOUNT |
| H-1B Regular Cap | 65,000 |
| H-1B Master's Exemption | 20,000 |
Per US fiscal year, 65,000 H-1B visas can be obtained in the H-1B Regular Cap be issued to persons who have a US bachelor's degree or higher (earned at an American university) or its equivalent (earned abroad). 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 US fiscal year is available for individuals with a US master's degree or higher (earned at an American university).
Note: Not all master's degrees from US educational institutions automatically qualify for the H-1B master's cap. To the US universities resp. US Colleges two conditions are imposed:
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 mandatory, as the applicant could qualify for the regular H-1B cap (and thus would have to file the H-1B petition for the regular cap).
This year's H-1B cap round for the US fiscal year 2025 (FY 2025) will started on March 6, 2024 with the electronic registration introduced a few years ago. From this date up to and including March 25, 2024, potential H-1B employers were able to register on the USCIS online portal to participate in the subsequent lottery process.
The selection process for initial H-1B electronic registration has been completed. Enough registrations were submitted to the USCIS during the initial registration period to reach the H-1B cap for US fiscal year 2025. The U.S. Citizenship and Immigration Services then randomly selected and notified those applicants among the properly filed H-1B registrations who are eligible to file an H-1B petition with the U.S. Citizenship and Immigration Services within 90 days from April 1, 2024, i.e. by June 30, 2024 – with a start date of October 1, 2024 (= earliest possible start of work).
Prerequisite: The H-1B petition is based on a valid, randomly selected preregistration and is filed on behalf of the individual named in the corresponding selected registration (= beneficiary).
The popularity of the H-1B visa for highly skilled workers is unbroken. For many years now, the number of potential H-1B applicants has regularly exceeded the available H-1B quota. The USCIS therefore randomly selected those applicants who could be considered.
Since fiscal year 2021, US companies wishing to obtain H-1B visas for foreign personnel must register online during a specified window in the spring. If the U.S. Citizenship and Immigration Services receive more potential H-1B requests during this period than are available per the H-1B quota, a lottery process takes place.
Only for these selected individuals can companies then file an H-1B petition with the USCIS in a 90-day window beginning April 1 of a given year for the earliest start date of October 1 of the same year.
Prior to the introduction of the H-1B registration process in 2020, several hundred thousand H-1B petitions were regularly received by the US immigration authority USCIS within a very short period of time from the former filing deadline of April 1. The USCIS then imposed an admission stop for the corresponding fiscal year and selected from the H-1B petitions received up to that date those that could be admitted for further processing. All other H-1B applications were returned unprocessed.
Not all H-1B petitions are affected by the quota system with the numerical limitation. The following H-1B petitions can always be filed with the US immigration authoritiy USCIS, i.e. they are cap exempt:
In addition, certain H-1B applicants may incur additional costs:
Further information about the different visa fees, other possible costs and the current Payment methods can be found on our fees page.
The H-1B visa application process is divided into what is generally a four-step process with different official responsibilities.
The USCIS has announced the online filing of I-129 H-1B application process and H-1B I-907 Premium Processing.
As of February 28, 2024, it is possible to file the I-129 form and the I-907 form for H-1B petitions without a cap (Non-cap filings) to be submitted online.
On April 1, 2024, the online filing of H-1B petitions and Premium Processing for petitioners whose H-1B registrations have been selected.
This means that the entire process can be handled online via a USCIS account. In this context, the US immigration authorities are introducing so-called Organizational Accounts, i.e. company accounts, which will enable several employees within an organization and authorized representatives (e.g. attorneys) to work together. These USCIS online accounts are already set up and used for the H-1B registration process.
Filing by mail will still be possible and will now be done via the USCIS Lockboxes (and only then distributed to the respective USCIS Service Centers).
The H-1B visa is a complex and time-consuming application procedure. The entire application process takes several months. The processing times are roughly as follows:
The H-1B visa contains a variety of information that identifies the visa holder and defines his or her rights and restrictions while in the United States.
It is crucial that you review this information carefully and ensure that it meets the requirements of your planned stay in the USA.
Here are some of the dates and details that can be found on a US visa:
We advise you on the choice of the appropriate visa category and take over the complete processing for you or your company.
Many applicants assume that they are guaranteed entry to the USA with an approved H-1B visa. However, an H-1B visa in the passport does not automatically guarantee the entering the United States. From a legal point of view, a visa for the USA, even with an approved H-1B visa in their passport, is therefor no guarantee for an entry into the United States. A valid H-1B visa only allows you to apply for entry into the United States at the border crossing (e.g. airport).
The decision on entry is generally made by the border officials who check the visa upon entry. The U.S. Customs and Border Protection officers have the final say and decide whether you are allowed to enter the country and if so, for how long, i.e. for how long you will be granted residence status. This also means that you may be refused entry.
If you have received an entry permit, it is advisable to go online to the I-94 form or check the entry stamp in your passport to see how long you are legally allowed to stay in the USA.
By the way: With Global Entry, certain biometrically registered and security-checked travelers can complete entry formalities independently and automatically at almost all major US airports. This allows foreign nationals to avoid long waiting times and enter the USA more quickly.
The H-1B skilled worker visa offers a number of benefits to both US companies and foreign workers.
The Office of Foreign Labor Certification (OFLC) publishes annual statistics with background information on H-1B petitions received and processed and publishes the top US states, fields of activity and largest US employers for H-1B, H-1B1 and E-3 Temporary Specialty Occupations programs.
You can find the complete statistics on the Website of the U.S. Department of Labor.
There is no blanket solution for individuals whose H-1B application could not be considered by USCIS or was not approved.
Whether and, if so, which other US work visa category could serve as a "substitute" must be clarified on a case-by-case basis.
In some cases, for example, applying for an L-1 visa or O-1 visa may be considered for you.
Spouses and unmarried children under the age of 21 can apply for a derived H-4 visa for the same period as the main applicant. If the children reach the American age of majority (21 years), they must change their non-immigration status or leave the country.
Spouses and children can visit private and public educational institutions with the H-4 visa, but are not allowed to apply for a work permit (Employment Authorization Document, EAD) with an H-4 visa. It is therefore generally not permitted to take up work, not even for children.
Applying for an EAD is possible in exceptional cases if the spouses (with H-1B status) are already in ongoing I-140 or adjustment of status proceedings for immigration (Green Card procedure) under certain access conditions.
A US work visa is always tied to a specific US company. In turn this means that you must have a specific employer in the United States before you can apply for a work visa.
The application process begins with the US company that wants to hire you. The US employer submits the petition either to the USCIS or to the responsible U.S. consulate. Since the application for a temporary work permit is made by the company for a future foreign employee, the U.S. employer is therefore the so-called petitioner, which means the official applicant. The future employee is the entitled person and thus the so-called beneficiary.
Many companies wonder what happens to the company-bound work visa when the visa holder no longer works for the US employer.
In the event that the employment contract is terminated, the US work visa automatically loses its validity. The derived visas of any family members who may have travelled with the employee also lose their validity upon termination of the work relations, as these are linked to the visa of the main visa applicant.
This means that the former visa holder is no longer allowed to enter the country with the work visa after termination of the employment relationship. Even if the work visa is theoretically still valid for a certain period of time, the visa may no longer be used to enter the United States. If the visa holder concerned wishes to travel to the US for tourism or business purposes in the future, he / she must reapply for an ESTA or a corresponding visa, depending on the type of activities carried out on site and the duration of such activities.
Tip: In order to avoid discrepancies or problems with later entries, it is advisable to inform the U.S. consulate about the new work situation. For this purpose, it is sufficient if the responsible company representative (e.g. HR manager, supervisor, board of directors) sends an e-mail to the responsible consulate with the request to invalidate the visa of the former employee. If possible, a copy of the visa should also be attached. The consulate will then put a note in the system so that the CBP officers at the US border are also informed.
In some cases, the visa holder will even be contacted directly by the U.S. consulate in order to send its passport with the work visa for the purpose of invalidation. In other cases, the visa will simply be invalidated by the CBP officer at the boder the next time he or she enters the United States.
Our recommendation: By sending a short message to the responsible U.S. consulate, companies can protect themselves and above all be sure that entry with the previously valid work visa is no longer possible. Do not take any risks and prevent possible abuse with company-bound visas.
Global Entry is usable with most US visas, even with ESTA. Except if you are a holder of one of the following visas, then you are excluded from Global Entry:
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Yes. Because the H-1B visa can only be applied for with the involvement of the US company, a US job offer is mandatory. For the rest US work visas generally cannot be applied for without a specific job offer. In addition, the application may normally only be filed by the US employer ("Petitioner") and not by the foreign worker ("Beneficiary").
The foreign employee's future H-1B position in the U.S. must be "H-1B capable" - meaning it must correspond to a "Specialty Occupations" activity.
U.S. immigration law recognizes a position as a "specialty occupation" if it meets one of the following four criteria:
Consequently, the minimum requirement for an "H-1B eligible" job offer in the U.S. is that the position usually requires a U.S. Bachelor's degree or its equivalent in the relevant field of work. This applies to the following professions, for example: Architects, Engineers, Medical Professionals, Lawyers, etc. But as the above four criteria make clear, occupations that are not traditional "Specialty Occupation" occupations can also be "H-1B capable."
The H-1B category is limited in number and subject to a certain quota system ("H-1B Cap"), which applies for one U.S. fiscal year (FY) at a time. The U.S. fiscal year begins on October 1 and ends on September 30 of the following year.
Petitions for extensions or modifications of H-1B visas already issued in prior years may generally be filed at any time and are not subject to numerical quotas.
Regular Cap
There are currently 65,000 H-1B visas available per U.S. tax year ("Regular Cap") with 6,800 H-1B visas already reserved for Singaporean and Chilean nationals due to free trade agreements. If more than 65,000 petitions are filed (which is the case almost every fiscal year) a lottery is held to select 65,000 from the total petitions filed.
Master's Cap
For individuals who have earned a U.S. Master's Degree from a U.S. university, 20,000 additional visas are available ("Master's Cap"). Comparable degrees earned abroad do not apply. If more than 20,000 Master's Degree H-1B Petition are filed, a lottery will be held to select 20,000 from the total petition submitted. The Master's Cap Petition that are not selected in the Master's Cap Lottery will then be treated as a "Regular Cap" Petition and thus may be selected in any Regular Cap Lottery.
Application only in April
H-1B initial applications may be filed with U.S. Immigration and Customs Enforcement on April 1 for the earliest possible work start date of October 1. If the quota is exhausted or the H-1B initial application is not selected in the lottery, an H-1B initial application cannot be made again until the following tax year.
An increase to the 195,000 visas once awarded in the age of the IT industry boom has been discussed time and again (especially due to pressure from large corporations such as Microsoft and Google), but unfortunately has not yet been implemented.
If the quota for the current U.S. tax year is exhausted, it will be necessary to switch to other categories (such as. E-1/E-2, or L-Visa), naturally subject to verification of the respective access requirements.
Individuals who are already in the U.S. may be able to make what is known as a change of status to the H-1B category, provided, however, that the individual has been not entered the country without a visa, has a valid residence status, and has not violated U.S. immigration laws. In addition, persons with certain statuses may not apply for a change of status at all or may only do so as an exception. Therefore, it is especially important to seek professional advice before applying for a change of status.
ImportantOne must clearly distinguish between a change of status and obtaining a visa. A successful change of status only means that one has a valid domestic residence status. But a change of status is not a visa!If you leave the United States and re-enter without a valid visa, you will be denied entry.
Background: The U.S. Citizenship and Immigration Services (USCIS) only approves the change of status to H-1B and does not issue a U.S. visa. Only the U.S. consulates abroad are responsible for issuing U.S. visas.If you want to leave and re-enter the country after a change of status, you need a valid H-1B visa. As a rule, you have to apply for this visa at the US consulate in your home country. However, it is also possible to apply for a US visa in Mexico or Canada at the US consulates there.
Due to the quota system, initial petitions for H-1B visas cannot be filed at any time (except for Initial applications that are not subject to the quota).
The application may be submitted in any year no earlier than April 1 (i.e., six months prior to the beginning of the tax year) for the earliest possible work start date of October 1.
If the quota is exhausted, an application can only be made again for the following tax year.
In previous years, the quota was unfortunately often exhausted within just a few days. New applications, which are affected by the quota, can only be submitted again from April 1 of the next year for the earliest possible start of work October 1 of the same year.
Quite often this means for the foreign applicant the elimination for the offered position. Alternatively, one could consider applying for an E-1, E-2 or L visa.
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