The H-1B Visa, Explained

Boundless ^ | November 11, 2024 | Ronald Huereca

[DoodleBob]

The H-1B visa program plays a critical role in the U.S. economy, allowing American companies to hire highly skilled foreign workers in specialized occupations. Whether you’re an employer looking to bring in top talent or a foreign national seeking to work in the United States, understanding the H-1B visa process is essential. This comprehensive guide will walk you through every aspect of the H-1B visa, from eligibility requirements to application procedures and beyond.

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What Is the H-1B Visa?

The H-1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. These occupations typically require a bachelor’s degree or equivalent in a specific field.

Key Points about the H-1B Visa:

1. Specialty Occupation: The position must require theoretical and practical application of specialized knowledge, typically requiring at least a bachelor’s degree.

2. Employer Sponsorship: A U.S. employer must sponsor the foreign worker and file the necessary petitions with U.S. Citizenship and Immigration Services (USCIS).

3. Annual Cap: There’s an annual limit on new H-1B visas, with a lottery system if demand exceeds the cap.

4. Lottery System: Due to high demand, if the number of petitions exceeds the cap, a lottery system randomly selects which petitions will be processed.

5. Duration: H-1B status is initially granted for three years but can be extended.

6. Dual Intent: Holders can intend to immigrate permanently while on an H-1B visa.

…

Benefits for Employers:

• Access to a global pool of highly skilled talent

• Fill skill gaps in the U.S. workforce

• Remain competitive in a global market

Benefits for Employees:

• Opportunity to work in the U.S. in their field of expertise

• Gain valuable international work experience

• Potential pathway to permanent residency (a green card)

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Is the H-1B a green card?

The H-1B is not a green card, but it can serve as a stepping stone to a green card, as it is “dual intent,” meaning you can apply for permanent residency (a green card) while on an H-1B visa. However, you must go through a separate process to obtain a green card. For more info, Boundless has put together a guide on how to switch from an H-1B to a green card.

New Policy for U.S. Graduates and DACA Recipients

In June and July 2024, the Biden administration announced significant changes to streamline the work visa process, particularly benefiting U.S. college graduates and DACA recipients. Here are the key updates:

1. Faster Processing: The government has implemented measures to expedite employment visa applications for college graduates, including DACA recipients, with highly skilled job offers.

2. Waiver Clarifications: Consular officers received updated guidance on recommending waivers of ineligibility, potentially speeding up the process for certain applicants.

3. Expanded Eligibility: While basic H-1B requirements remain unchanged, there’s a shift towards prioritizing applications from U.S. college graduates including DACA recipients. The government is also considering expanding the definition beyond traditional STEM fields, potentially opening up more pathways for individuals in non-STEM fields.

4. DACA Recipients: May have a clearer path to H-1B visas and potentially permanent residency through employment-based sponsorship.

5. Expedited Timelines: As of July 2024, interview wait times for H-1B visas are minimal at most overseas posts.

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H-1B Visa Requirements

To qualify for an H-1B visa, both the job position and the foreign worker must meet specific criteria:

For the Employer:

1. Specialty Occupation: The job offered must qualify as a “specialty occupation” requiring:
   • A deep understanding of complex concepts (theory) and the ability to implement that knowledge to solve real-world problems (practice).

   • At least a bachelor’s degree (or something similar) in a subject directly connected to the role.

2. Labor Condition Application (LCA): The employer must file an LCA with the U.S. Department of Labor, certifying the following:
   • The H-1B worker will be paid the prevailing wage or the actual wage paid to other employees with similar experience and qualifications, whichever is higher.

   • The H-1B worker’s employment will not adversely affect the working conditions of U.S. workers similarly employed.  

   • There is no strike, lockout, or layoff in the occupational classification at the place of employment at the time of filing.  

3. Sponsorship and Petition Filing: The employer must sponsor the foreign worker and file Form I-129, Petition for a Nonimmigrant Worker, with USCIS.  
   • The employer must also complete the H-1B electronic registration process if subject to the annual cap.  

4. Employer-Employee Relationship: There must be a valid employer-employee relationship, with the employer having the right to control the employee’s work.  

For the Employee:

1. Educational Qualifications: Possess a bachelor’s degree or higher (or its equivalent) in a specific field directly related to the offered position.  
   • If the degree is from a foreign institution, it may need to be evaluated to determine its equivalency to a U.S. degree.

2. Job Offer: Have a legitimate job offer from a U.S. employer for a specialty occupation.

3. Work Experience: Depending on the specific occupation and degree, you may be required to demonstrate relevant work experience in the field.

4. Licensing: If the occupation requires a license to practice in the state of intended employment, the employee must generally possess that license before the H-1B petition can be approved.  

Additional Considerations:

• Cap-Subject vs. Cap-Exempt: Some H-1B petitions are exempt from the annual cap (e.g., those for employees of institutions of higher education, non-profit research organizations, or governmental research organizations).  

• H-1B Lottery: If the number of H-1B registrations exceeds the annual cap, a lottery is conducted to randomly select registrations permitted to proceed to filing.

• Maintain Valid Status: The employee must maintain their H-1B status by adhering to the visa terms and conditions and informing USCIS of any material changes in employment.  

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H-1B Specialty Occupations

To qualify as a specialty occupation, the position must demand a blend of theoretical knowledge and practical skills. It typically necessitates at least a bachelor’s degree or its equivalent in a relevant field. Let’s break down the requirements:

Position Criteria (must meet one):

• Education: A bachelor’s or higher degree is usually the minimum requirement

• Industry Standards: Degree requirements common in the industry for similar positions

• Complexity: The job is so complex or the duties are so specialized or unique that it requires an individual with a degree

• Employer’s Practice: The employer typically requires a degree for the position

Beneficiary Qualifications (must meet one):

• Education: Possess a U.S. bachelor’s or higher degree in the required specialty.

• Expertise: Have education, training, and/or experience equivalent to a U.S. bachelor’s or higher, with recognized expertise.

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[DoodleBob]

let Facts be submitted to a candid world, as to just what is and isn’t an H-1B visa.

[central_va]

The H-1B visa program plays a critical role in the U.S. economy, allowing American companies to hire highly skilled foreign workers in specialized occupations and pay them less than the prevailing wage for domestic labor.

Fixed it.

[wildcard_redneck]

As for the allegedly pressing need for more “high-skill” immigration, specifically: As the always-astute Blaze Media podcaster Daniel Horowitz pointed out on X, in recent decades, “71% of jobs in Silicon Valley have gone to foreign workers, while 74% of American STEM graduates have failed to secure jobs in STEM fields.” Why, then, do we allegedly need to flood our nation — and our tech companies — with foreign, and mostly Indian, labor? We don't.
Source https://www.realclearpolitics.com/articles/2024/12/27/immigration_moratorium_now_152135.html

Renn, who has a great deal of experience in corporate America, tweeted, “I have direct, personal experience with how H-1Bs work in the real world. I was ‘in the room where it happened.’ We were told we could not hire American unless we showed that we could not use an H-1B. Much of [what] people tell you about H-1Bs is a lie.” Whatever the H-1B program was designed to do, it has been the subject of rampant abuse for a long time.

Trump himself took this position in 2016, telling Megyn Kelly that “The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay.” He pledged to end the misuse of this program when in office.

But even in tech itself, it seems that this program has been rife with abuse—precisely of the kind that Americans have reported. A 2017 commentary in its web magazine, Spectrum, co-written by a past, (then) present, and (then) future president of the Institute for Electrical and Electronic Engineers (IEEE), described how the organization had been working for over a decade to fix the problems with these H-1B visas. While the authors admitted that some large tech firms were using these visas to secure the kind of extraordinary talent that Musk was talking about, many firms were indeed abusing them and bringing in foreign workers who would work well below market level: “This is the real story of the H-1B visa. It is a tool used by companies to avoid hiring American workers, and avoid paying American wages. For every visa used by Google to hire a talented non-American for $126,000, ten Americans are replaced by outsourcing companies paying their H-1B workers $65,000.”
Source https://amac.us/newsline/economy/the-conversation-we-need-to-have-about-american-workers/

[Nateman]

Critical role? So how did America even survive until 1990 when H1B was implemented?

[E. Pluribus Unum]

Turns out the H-1B ‘lotto system’ is totally and completely rigged…

https://freerepublic.com/focus/f-news/4286907/posts

[Nateman]

Somehow, without H1B , America got enough technical talent to land men on the Moon in 1969. That is , unless you are one of those conspiracy nuts who believes that didn’t happen.

[tophat9000]

And you actually believe they follow those rules because I can tell you flat out they don’t The system is gamed I work in IT since 1980 I’ve seen it... I’ve worked it I’ve watched the hiring system and H1b evolve into what it is now

I worked with large companies where they buy out whole apartment blocks to house cheap H1B Visa labor I’ve worked with them...

I’ve worked for it employment agencies... I know how they game the system I’ve been called multiple times by headhunters trying to place people...

Guess what most of employment agency headhunters are Indian....

I have no problem with hiring critical people of extreme talent

tThe problem is that’s not what happens and you’re deluded if you think it does It’s a game

I’ve actually worked overseas myself for company American companies just temp contracts maybe it was out of country for a week or two

You wouldn’t believe the The hoops other countries put you through just a work in their country a week... Canada was notoriously hard...

[DoodleBob]

I can’t speak for your industry or experience, but that has NEVER been my experience.

In fact, across LinkedIn there are countless job postings where it’s made explicit that “Applicants must be authorized to work for ANY employer in the U.S. We are unable to sponsor or take over sponsorship of an employment Visa at this time.”

[HamiltonJay]

I can tell you first hand, what the description says and reality are two completely different things

I have worked in IT since 1994, this program is a scam and wholesale abused and has been since day one. It cannot be salvaged. It needs scrapped.

[janetjanet998]

Critical role? So how did America even survive until 1990 when H1B was implemented?
—

By the mid 1990’s this started to happen
Video
H-1B Visa - 1995 report from 48 Hours and Dan Rather about replacing American workers with people from India
https://rumble.com/v63nssd-h-1b-visa-1995-report-from-48-hours-and-dan-rather.html

[grey_whiskers]

Troll.

[JSM_Liberty]

“Benefits for Employers”

Allows the employer to get an employee that they have total control over because that employee has no leverage.

[central_va]

Maybe you could catch a strap on ride aboard Space-X next rocket launch.

[frank ballenger]

Thanks for that information.

H-1B

Not to be confused with the
B-1B

https://www.google.com/search?q=images+B-1+B+bomber&sca_esv=1d501c5bd732877f&udm=2&biw=1052&bih=479&ei=crdxZ_zMFZ-lptQP8NvYqAs&ved=0ahUKEwj8zbLr7s2KAxW

Made by Boeing.

[E. Pluribus Unum]

https://revolver.news/2024/12/turns-out-the-h-1b-lotto-system-is-totally-and-completely-rigged/

[Ex gun maker.]

How quaint.
Here is the law as written, too bad it has so little relation to AS PRACTICED!

I still want my answer as to what percentage of these “Temporary” workers never leave.

Then there is this,

Duration: H-1B status is initially granted for three years but can be extended.
(Should be limited to ONE year)

Dual Intent: Holders can intend to immigrate permanently while on an H-1B visa.
(And there it is, really just another means to evade the normal immigration channels and limits)

Potential pathway to permanent residency (a green card)
(End this immediately)

Expanded Eligibility: While basic H-1B requirements remain unchanged, there’s a shift towards prioritizing applications from U.S. college graduates including DACA recipients. The government is also considering expanding the definition beyond traditional STEM fields, potentially opening up more pathways for individuals in non-STEM fields. (Biden is gone, this should be too)

DACA Recipients: May have a clearer path to H-1B visas and potentially permanent residency through employment-based sponsorship. (NO!)

[ifinnegan]

“ Somehow, without H1B , America got enough technical talent to land men on the Moon in 1969. That is , unless you are one of those conspiracy nuts who believes that didn’t happen.”

Um, a lot of German immigrants were involved.

[central_va]

H-1B is high tech human trafficking and indentured servitude. It is the most anti MAGA thing there is. Even worse than illegal immigration.

[JayGalt]

Let the facts not the narrative be presented.
The OP has posted the narrative and ignored the reality.

[Vaduz]

specialty occupation requiring:
A deep understanding of complex concepts (theory) and the ability to implement that knowledge to solve real-world problems (practice).

Not much of that from many U.S. colleges and universities until there is H-1B will have to do.