NACE Journal / August 2022

The H-1B is the most common work visa in the United States. Using the H-1B category, U.S. employers are permitted to hire international workers who have at least a four-year U.S. bachelor’s degree or the foreign equivalent, if the individual will work in a position requiring the type of degree that the graduate has. The following is a summary of this important work visa category.

Basic Employment Path for International Graduates of U.S. Colleges and Universities

Most international students attend university in the United States using the F-1 student visa category. F-1 students who graduate from a U.S. college or university are eligible to obtain 12 months of work authorization after graduation—this is known as Optional Practical Training (OPT). OPT allows the F-1 graduate the opportunity to obtain practical training work experience in jobs related to their degree program. STEM graduates are eligible for an additional 24 months of OPT, for a total of 36 months of OPT work authorization.

While students are working using OPT, employers can explore longer-term work visas that may allow the student to remain in the United States and work after expiration of the OPT. The most common option is the H-1B work visa.

Introduction to the H-1B Program

H-1B visas allow U.S. employers to hire international individuals who possess at least a four-year U.S. baccalaureate degree (or higher) or the foreign equivalent of a U.S. baccalaureate degree (or higher).

• Only a U.S. employer can file an H-1B petition. The student cannot file on their own.
• The employer must offer a job that requires at least a four-year degree in a particular field of study, and the prospective employee must have at least a four-year degree in that particular field of study. For example, the position of “accountant” at an accounting firm will qualify for an H-1B. This is a job that requires a specialized four-year degree in order to do the job.
• The H-1B is popular for many types of positions with companies all over the United States, including in technology, engineering, logistics, finance, advertising, business management, teaching, and many others jobs.

Duration: An H-1B visa is valid initially for up to three years and can be extended for an additional three years for a total of six years. Extensions beyond six years are available in limited circumstances.

Procedure: The employer files an H-1B petition with the U.S. Citizenship & Immigration Services (USCIS). Employers frequently file the H-1B petition while an employee is working using OPT. The H-1B petition will request an initial employment period of three years and can be extended for an additional three years. Filing an H-1B petition does not obligate the employer to keep the employee for the entire duration requested. The employer retains full authority to terminate the employment. An employer has no obligation to advertise to determine if U.S. workers are available for the employee’s position in order to file an H-1B petition for an international employee.

Required wage: Employers that file H-1B petitions are required to verify to the U.S. Department of Labor (DOL) that the employer will pay the H-1B worker at least the same wage paid to U.S. workers who perform similar work in the area of intended employment. This is called the “prevailing wage” for the job. Prevailing wages are determined by accessing a U.S. DOL database or by referring to private wage surveys that meet strict DOL requirements. If the employer pays its U.S. workers who hold similar positions more than the DOL (or survey) prevailing wage, the employer must pay its H-1B workers at least the same wage the employer pays its similarly employed U.S. workers. In other words, the employer must pay the H-1B worker the higher of the prevailing wage or the “actual wage” paid to its U.S. workers.

Costs: The cost of the H-1B consists of the attorney fee (if an attorney is used), plus the USCIS filing fee. The filing fee is currently $2,460 for employers with more than 25 employees and $1,710 for employers with 25 or fewer employees. These fees are regularly increased by Congress. The U.S. government considers all fees and costs for the H-1B process to be employer expenses. They cannot be paid or reimbursed by the employee.

Family: The spouse and children of H-1B employees receive H-4 visas. H-4 family members cannot work under the H-4 category, with the exception that H-4 spouses can obtain work authorization after the H-1B worker pursues the process for a permanent resident green card but is delayed in completing the green card process because of quota backlogs.

H-1B quota: USCIS issues 85,000 new H-1B approvals each fiscal year. The government fiscal year runs from October 1 through September 30. Each year, on October 1, the USCIS has 85,000 new H-1Bs to issue. The quota is divided into two separate sub-quotas:

• Advanced degree quota: Graduates with U.S. advanced degrees, e.g., master’s, Ph.D., issued by a U.S. university have a special quota of 20,000.
• Regular quota: For all other applicants, the quota is 65,000. This includes U.S. bachelor’s degree holders and individuals with degrees from foreign countries. This can also include U.S. advanced degree holders, if the advanced degree quota is exhausted, and the applicant was not selected in the advanced degree quota lottery (explained below).

In order to secure one of the 85,000 H-1B quota numbers, employers must “pre-register” by filing an H-1B registration in March during a designated registration period. These registration dates change every year and are announced in February by the USCIS. Each year, during the registration period, the USCIS receives many more H-1B petitions than there are quota numbers available (as many as 400,000 registrations have been filed for the 85,000 quota). As a result, the USCIS holds a random lottery to select 20,000 advanced degree cases to process, and then 65,000 regular quota cases to process. (NOTE: If a U.S. advanced degree holder is not selected in the advanced degree quota lottery, they are automatically included in the regular quota lottery, giving advanced degree holders two chances in the lottery.)

If a case is selected for processing in the H-1B lottery, the employer can then prepare and submit the H-1B petition to the USCIS to show that the employee has a U.S. bachelor’s degree (or higher) and will work in a job requiring the type of degree that the employee has. If the case is approved, the H-1B will become effective on October 1, when the H-1B quota is released. In the meantime, the student can continue to work using OPT, which automatically extends until October 1 for students who are selected in the lottery.

Exceptions to the H-1B Quota

The following are not subject to the H-1B quota:

• University jobs or jobs with nonprofit entities affiliated with universities;
• Jobs with nonprofit research organizations;
• Jobs with government research organizations;
• H-1B extensions with the same employer;
• H-1B transfers to a new employer.

Employers in these categories can file H-1B petitions at any time, even if the quota is exhausted for all other employers.

Grace period: An H-1B employee’s immigration status is tied to the employer that filed an H-1B petition on their behalf. If an H-1B employee were terminated or laid off or if the employee quits, that employee has a grace period of 60 days to find new H-1B employment in the United States. Once the H-1B employee finds a new employer, and the employer files a new H-1B petition within the 60-day period, the employee can begin working as soon as the new petition is filed. There is no need to wait for the approval of the H-1B petition.

Exceptions to the six-year maximum: As previously noted, H-1B employees are generally limited to a maximum of six years in H-1B status. However, there is an exception to the six-year maximum for certain H-1B employees who have started the employment-based “green card” process, but cannot complete that process due to processing delays or backlogs. These employees can extend their H-1B status in increments of one to three years, indefinitely, until the green card is finally approved.

Other Work Visa Options

For H-1B registrations not selected in the H-1B lottery, there may be other options available to remain in the United States, but they are limited:

• Students who are citizens of Canada, Mexico, Chile, Singapore, and Australia have special work visa options that may be available.
• Employees of “multi-national” companies may qualify for an L-1 visa, if they first work outside the United States for an least one year and transfer back to the United States as managers, executives, or employees with specialized knowledge of the company’s products, services, and so forth.
• Students who are citizens of certain countries with treaties of trade and commerce may qualify for an E visa if they work for a company in the United States that is owned by citizens of the same country. (Google “E visa country list” to see eligible countries.)
• Re-enroll in a new degree program and extend the F-1.

Proposed Legislation

There have been many legislative proposals to enhance the H-1B program over the past few years, none of which have been enacted into law. Nonetheless, rumors persist about these proposals, including:

• A proposed minimum H-1B salary of $130,000 for employers who hire a large percentage of H-1B workers.
• A special H-1B quota for any graduate of a U.S. college or university (not just STEM grads).
• An easier path to a permanent resident green card for STEM grads of U.S. universities.

H-1B Remains an Excellent Option

The H-1B program remains an excellent option for employers wishing to hire talented international graduates of U.S. universities. Employers will no doubt continue to use this program to remain competitive in United States and international markets.