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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.
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 skilled worker visa offers a number of benefits to both US companies and foreign workers.
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.
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 Caps."
Per U.S. 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 i.e., a bachelor's degree (or higher) earned at a US 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, for people with a US Master's Degree, i.e., a master's degree earned at an American university, (or higher) a H-1B Master's Exemption Cap with an additional 20,000 visas available per US tax year.
ATTENTION: 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 therefore imperative. Foreign applicants may very well qualify for the regular H-1B cap.
The H-1B cap season for US fiscal year 2024 (FY 2024) started on April 1, 2023, from which date U.S. companies or organizations had 90 days, i.e., until June 30, 2023, to submit their applications for H-1B visas for foreign employees – with a start date of October 1, 2023 (= earliest possible start date).
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) submitted.
For initial applications, US companies could apply for a fee during the period from March 1, 2023, to March 17, 2023, inclusive, through a USCIS online portal. A non-refundable H-1B Electronic Registration Fee of $10 is due per employee or per registration. The advantage for U.S. employers who come up empty in the H-1B pre-registration process: Those who are not selected – compared to the selection process until just a few years ago – are spared the processing burden of compiling the H-1B file. Indeed, H-1B pre-registration is neither particularly costly nor burdensome.
The following information must be provided on the H-1B registration:
US companies (Petitioner)
Foreign employees (Beneficiary)
Duplicate or incorrect entries can be deleted by U.S. companies up until the registration deadline in order to re-register the employee in question for a fee. Furthermore, after the end of the registration period, in case of duplicate entries for one and the same employee, all registrations for this person for the U.S. tax year 2024 will automatically become invalid.
The selection process for the final Fiscal Year 2023 has been completed. USCIS reported that the agency received enough registrations within the registration period to meet the set H-1B quota. As in previous years, far more H-1B registrations were received for potential H-1B applicants than are available per the H-1B cap. Among those registered, those who were drawn at random (lottery) and thus qualified for this year's application round have already been notified.
Companies were able to check their status in the online profile to see if they were approved for the next round of applications, on a waiting list, disqualified or unfortunately not considered.
Only companies whose potential H-1B applicant:s were drawn in the registration round had a 90-day window to formally file their applications with U.S. immigration authorities.
Regularly, demand for the H-1B category far exceeds the supply of the numerically limited H-1B visas, so a computer-generated random process (Random Selection) is used. In this process, those for whom H-1B applications can be filed are drawn from the pool of persons pre-registered via the online portal.
After the H-1B Lottery has been conducted, one of the following four status reports are possible in the online profile for each registration (i.e., for each registered beneficiary or beneficiaries):
1. submitted
This status will be displayed beyond the end of the selection process. Properly submitted registrations that are not selected will initially remain in the system with a status of "Submitted" and could theoretically be considered for selection until the end of the U.S. fiscal year (e.g., if a relatively high number of registrations do not result in actual submissions to USCIS during the 90-day submission window). For potential additional lotteries, the status would update accordingly to "Selected" if considered.
2. selected
Registration has been selected. The U.S. employer may file an H-1B petition for the current Fiscal Year.
3. not selected
The registration was not selected and therefore not considered for the current US tax year. Filing would then only be possible again in the coming Fiscal Year.
4. denied
If more than one registration for the same beneficiary employee (Beneficiary) has been filed by a U.S. company, this will invalidate and thus reject all registrations for that person.
In FY 2023 (FY 2024), U.S. Citizenship and Immigration Services announced the receipt of approximately 780,884 valid registrations for participation in the U.S. Regular Cap and Master's Cap lotteries under the annual H-1B quota. As a result, USCIS received the highest H-1B lottery entries ever recorded, making the chance of being considered in the H-1B selection process lower than ever.
This significantly exceeded the previous high of 474,421 valid registrations achieved in the previous year (FY 2023).
The lottery selection process of registered persons will be conducted in reverse order since 2019, so that candidate:s with aU.S. Master's Degreeor higher have a greater chance of being selected:
Not all H-1B petitions are affected by the quota system or numerical limitation. The following H-1B petitions can always be filed with U.S. immigration authorities, i.e., are.Cap Exempt:
The popularity of the H-1B visa for highly skilled workers continues unabated:
For several years now, the number of potential H-1B applicants has regularly exceeded the available H-1B quota.
Beginning in FY 2021, U.S. companies seeking H-1B visas for foreign personnel must register online during a specified window each spring. If U.S. immigration authorities receive more potential H-1B requests during this period than are available per H-1B quota, a lottery will take place. Only for these drawn individuals can companies then file petitions with U.S. immigration authorities during a 90-day window beginning April 1.
Prior to the introduction of the H-1B registration process in 2020, several hundred thousand H-1B petitions were regularly received by U.S. Immigration and Customs Enforcement within a very short period of time from the then filing deadline of April 1. USCIS then imposed an acceptance freeze for the corresponding Fiscal Year and drew lots from the H-1B petitions received by then for those that were processed. All other petitions were returned unprocessed.
The Office of Foreign Labor Certification (OFLC) also regularly examines the following H-1B issues:
You can find the complete statistics on the U.S. Department of Labor website, DOL for short.
The H-1B visa application process is divided into what is generally a four-step process with different official responsibilities.
The H-1B visa is a complex and time-consuming application process. The entire application process takes several months. The processing times are roughly divided as follows:
Generally, all applications filed on Form I-129 (Petition for a Nonimmigrant Worker) are filed with USCIS – as is the case with the H-1B visa - the opportunity to expedite the long processing times.
This is possible with Form I-907 (Request for Premium Processing) and an additional fee of currently $2,500. The advantage of the Premium Processing procedure is that the USCIS guarantees applicants a response within 15 days. The response usually includes an approval or an inquiry (Request For Evidence, RFE) or rejection.
PLEASE NOTE: Due to the large volume of applications, the Premium Processing procedure may be suspended for a certain period of time during Cap Season, which may extend processing times by several months. However, this varies from year to year.
The H-1B visa is granted for a maximum of three years in the initial application and can be extended for another three years. The maximum duration of stay of six years may be exceeded only if a timely job-related Green Card has been applied for on the part of the US company (= 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.
Special features:
It is possible to apply for an EAD in exceptional cases if the spouses (with H-1B status) are already in ongoing immigration status adjustment proceedings (Green Card Procedure) are located.
There is no blanket solution for individuals whose H-1B petition could not be considered by USCIS.
Whether, and if so, which other U.S. work visa category could serve as a "substitute" must be determined on a case-by-case basis.
For example, in some cases, applying for an L-1 visa or O-1 visa may be considered.
The fees for applying for a visa vary considerably depending on the category and may regularly increase or decrease, also as a result of exchange rate fluctuations. Therefore, every applicant should inform himself about the current fees before applying.
The application for a U.S. visa must be made through the official U.S. authorities, e.g. the U.S. consulates and U.S. embassies. The actual visa application is placed online, but almost every applicant must go to the consulate in person for a visa interview. With some work visas, it is sometimes necessary to send extensive files by mail to the U.S. authorities in the USA prior to the consular application procedure.
We advise and support companies and private individuals in all matters relating to visa applications. Read more about the requirements, duration and costs of a visa application.
A U.S. work visa is always tied to a specific U.S. 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 U.S. company that wants to hire you. The U.S. 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 U.S. employer.
In the event that the employment contract is terminated, the U.S. 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 U.S. 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 U.S. 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.
Depending on the visa type, the application is made through the U.S. consulates in the home country or additionally through the U.S. Citizenship and Immigration Services (USCIS). In Germany, for example, you can apply at the U.S. Consulate in Berlin, Frankfurt/Main or Munich.
IMPORTANT: Since 2001, all applicants between the ages of 14 and 79 have been required to appear in person without exception. This means that all visa applicants of this age must submit their application at a personal interview at the U.S. consulate. No documents are submitted in advance by mail (exception: age groups under 14 and over 79, here the application is submitted by mail). Another exception at present is theVisa Reissuance Program.
All applicants of a Nonimmigrant visa must be in addition to the Online application DS-160a visa profile on the website of the Visa Information Servicecreate for the purpose of making an appointment and paying the visa processing fee.
In the first step you make the payment of the visa fee (please note that the application fee is not refundable if your visa is rejected). The fee can be paid by online bank transfer, SOFORT transfer (electronic funds transfer), debit card or cash at a bank. Usually you will receive an email notification that the payment has been received and your account has been activated so that the appointment can be made.
The interview appointment must be made either online via the visa profile or by calling the U.S. consulate call center at +49 (0)322 2109 3243. If you make the appointment online via your Visa Profile, you will have the opportunity to view the available appointments at the U.S. consulates in Berlin, Frankfurt/Main and Munich in a calendar. You will then receive an "Appointment Confirmation", i.e. an appointment confirmation including proof of payment of the visa application fee. Appointment postponements or cancellations are possible. However, if you postpone your appointment more than twice, you will have to go through the whole process from the beginning and pay the visa fee again. On our website you can find the current visa fees.
Depending on the type of visa, a certain application fee is charged per applicant, which is not refundable even if the visa is rejected.
Please make every effort to schedule an appointment in a timely manner. U.S. officials cannot and will not make allowances for individual travel plans.
Basically, in addition to the common DS-160 application form, applicants must have and the "Appointment Confirmation" you have to submit further documents. What these are also depends on the visa applied for.
Please note that your passport will be retained at the U.S. Consulate on the day of the interview and will be delivered by registered mail to a German address after a processing time of approximately one to two weeks. A personal pickup of the visa or an issuance on the same day are not possible!
Spouses and unmarried children under the age of 21 will be issued a derived J-2 visa for the same period as the principal applicant and may travel to the United States on that visa.
Only those individuals who can demonstrate that they meet at least one of the following requirements will qualify for an H-1B visa:
A Bachelor's Degree or higher earned at an American educational institution (US University, etc.).
An academic degree earned outside the U.S. that has been evaluated by an Evaluation Service as equivalent to a U.S. bachelor's degree or higher.
A U.S. authorization (e.g., U.S. license) that entitles the foreign employee to full employment in the United States.
A combination of high school education and vocational training and/or several years of work experience that is recognized as equivalent to a U.S. Bachelor's Degree. The method used to demonstrate this equivalency is called a Work Experience Evaluation.
One of the most common methods of demonstrating credential equivalency is called an evaluation or "degree equivalency" process. There are various providers in the United States that conduct so-called "work or credential evaluations", e.g.:
World Education Services, Trustforte, Josef Silny & Associates, Inc., Park Evaluations, Morningside Evaluations, Evaluation Services, Inc., Education Evaluators International, Foundation for International Services, Inc. and Education Credential Evaluators.
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.
H-1B visas may be applied for in the initial application for a maximum of 3 years. An additional three-year extension is possible, but a total stay of 6 years may generally not be exceeded.There is generally no "cap" for the three-year extension after the initial grant period.
After 6 years in H-1B status, one must spend a full year outside the U.S. before being eligible for H-1B status again. However, in the case of a new application, the following also applies again the H-1B quotation.
Otherwise, concurrent with staying in H-1B status, one can obtain a job-relatedGreenCardby a U.S. employer. Should this application have been filed in a timely manner (at least 365 days prior to the expiration of H-1B status), the legal residence is extended by the period until the receipt of the written acceptance or rejection of the green card application.
Accompanying spouses and unmarried children up to age 21 will be granted derivative status upon application, and thus an H-4 visa. However, with this visa, spouses are permitted tonotAllowed to work, i.e. the acquisition of a General Work Permit (Employment Authorization Document, EAD) in the USAis excluded(in contrast to other categories such asL-1orE-1/E-2).
Children of H-1B holders may, of course.Attend educational institutions (schools/universities), but may not engage in paid work.
Important exception: Exceptionally, H-4 spouses may apply for work authorization if:
As a rule, applicants find out on the day of their interview whether the visa will be granted or not.
In certain cases, the visa applicant receives a letter of refusal from the consulate after a certain processing time. Incidentally, no reasons need to be given for a refusal. The reasons for this can be manifold and range - depending on the visa category - from the assumption of an immigration intention, to the presumption of illegal employment, to insufficient application documentation.
Once this has happened, a new visa can usually only be (successfully) applied for after several months or even years. Theoretically, there is no waiting period for the applicant until the next submission. However, experience shows that without a blatant improvement in the requirements of the respective visa category (e.g. proof of the intention to return to the home country, financial means, proof of specialized professional knowledge, etc.), a new application does not appear to make much sense.
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