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H-1B Visas and 

history, definition, stats

Formed in 1990, the H-1B visa has played a critical role for both foreign workers and the United States 

On this page:

  • The history of how the H-1B was formed and its purpose

  • Types of requirements for the H-1B visa

  • Registration process and timeline

  • Basic stats

  • Period of stay and family considerations

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HISTORY, DEFINITION, STATISTICS

The H-1B visa was formed in 1990, through the bipartisan Immigration Act, introduced by Democrat Ted Kennedy and signed into law by Republican George H W Bush.

 

The goal of the Immigration Act?  To strengthen the U.S. by enabling talented foreign workers to contribute to the United States through their considerable talents. Indeed, H-1B workers have played a critical role in the U.S. economy and health.

In support of this goal, the H-1B visa is a non-immigrant visa, which means that it enables employers to temporarily hire foreign workers in positions that meet certain requirements related to the three categories below:

  • H-1B: Specialty Occupations (The core definitional requirement of a specialty occupation is that the position must require no less than the equivalent of a U.S. bachelor’s degree as a minimum qualification and that the person applying for the role must have this degree).

  • H-1B2: DOD Researcher and Development Project Worker (Largely similar to a specialty occupation role; the largest difference being that the project is a "cooperative research and development project or a coproduction project under a reciprocal Government-to-Government agreement administered by DOD" (source: USCIS)

  • H-1B3: Fashion Model for persons who are "fashion models of prominence" (USCIS)

Assuming that the position you have applied for meets one of the above criteria, your employer ​or their attorney can submit an initial application on your behalf. That they are doing this for your benefit is why you are referred to as a beneficiary.  

 

After initial applications are submitted along with a $10 filing fee by your employer or attorney using the H-1B Electronic Registration Process, along with information about the employer and beneficiary. The information collected about the beneficiary includes: name, gender, whether you are applying for graduate degree quota, birthdate, country of birth, country of citizenship, passport number.

If all goes well, you will receive the status of "selected", which means that you are able to file your full petition, which includes more information such as an Labor Certification Application (LCA).

An indicator of its popularity and the impact on U.S. businesses is that "[S]ince the category was created in 1990, Congress has limited the number of H-1Bs made available each year. The current annual statutory cap is 65,000 visas, with 20,000 additional visas for foreign professionals who graduate with a master’s degree or doctorate from a U.S. institution of higher learning" (source). This statutory cap relates to what is referred to as the H-1B lottery; it means that the number of persons receiving an H-1B will not exceed this cap.

According to the USCIS, over 583,420 persons are authorized to work within the U.S. on an H-1B visa.

If these numbers seem not to add up, it is because certain professions are "cap-exempt", which means that persons in professions are not subject to the 85,000 annual cap. Thus, the total number of visas approved each year exceeds the 85,000 cap, which is illustrated in the USCIS chart below:

2021 Registration Timeline 

  • Feb. 24: Prospective petitioners may begin creating H-1B registrant accounts (account creation will remain open throughout the entire registration period). Representatives may create an account at any time.

  • March 1: H-1B registration period opens at noon ET.

  • March 20: H-1B registration period closes at noon ET.

  • March 31: Date by which USCIS intends to notify selected registrants.

  • April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed

H-1B petitions filed and approved by type of petition, 2016-2019

source: USCIS

What types of organizations are cap-exempt?

  • institutions of higher education;

  • non-profit entities which are “related to” or “affiliated with” institutions of higher education; 

  • non-profit research organizations; and government research organizations.

Period of Stay

The H-1B visa is a temporary visa, which means that the visa expires after a certain amount of time.  An H-1B visa is valid for up to three years initially and it can be extended for another three years (for a total of six years).  Once the visa expires, the foreign worker must either leave the United States or apply for another type of visa such as an O visa or possible an EB-1 or EB-2 visa, which are for persons of extraordinary or exceptional ability.

Considerations: length of stay, family considerations

Length of stay

  • Keep in mind that the time spent on other visas such as the L-1 may contribute to this total, time outside of the U.S. during the time of the visa does not count toward the 6-year maximum.

 

"

Under AC21 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the application of the per-country limits may obtain extension of the H-1B status until the adjustment of status is decided.

Under AC21 section 106(a), an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed

"

Family Considerations

  • Family: "spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to work" (source)