What is an H-1B Visa?

H-1B visas are for foreign graduates (bachelor’s degree or higher) with a U.S. professional job offer, i.e., one which requires a degree.  The applicant and the position must therefore be professional and the degree must be relevant to the employment.  The applicant’s credentials will need to be evaluated to show equivalency to a 4-year U.S. degree.  In the absence of a degree, relevant work experience may be taken into account (3 years’ relevant work experience = 1 year of college).  This visa category is heavily regulated, and the employer is closely scrutinised on such issues as prevailing wage and what USCIS refers to as “job shopping” or the contracting out of labor.

But that’s the least of anyone’s worries.  The real problem is the quota system.

H1B Quota

Updating my blog on the H1B visa quota from last year is very simple because nothing has changed.  No immigration reform measures to increase the H1B quota have passed.  Proposals to increase the bachelor’s quota to 110,00 and master’s to 25,000 in the last few years have come to naught and the worldwide quota of H1B visas remains at 85,000, woefully short of demand in recent years and almost certain to result in another H1B lottery in the first week of April 2016.

The annual worldwide quota of 85,000 H1B visas is made up as follows:

58,200 for Bachelor’s degree holders

6,800 for H-1B1 visas for nationals of Chile and Singapore

20,000 for US Master’s degree holders

In recent years, the only way is up, with more and more applications filed each April 1st.  In 2015, over 233,000 H1B applications were filed in the first week of April, up from 172,000 in April 2014 and 124,000 in April 2013.  This trend is likely to continue when the quota becomes available on April 1, 2016 for Fiscal Year 2017 (Oct 2016 – Oct 2017). Odds were predicted to be less than 50/50 last fiscal year based on the previous year’s figures and came in even lower than anticipated, with about 36% of entrants ‘winning’ the H1B lottery in April 2015.  It’s remarkable that despite the risks and ever diminishing odds of this crazy lottery, even more US employers petitioned for foreign workers in April 2015, up 35% on April 2014.  This year the odds are anyone’s guess but all indications are that the trend of ever-increasing numbers of applications will continue.

H1B filing fees payable to US Citizenship & Immigration Service (USCIS) are $1575 where the US employer has less than 26 employees; $2325 if more than 26 employees; and, an additional $1225 if the case is expedited.  Why expedite? Expedited or ‘premium’ processing usually means USCIS will respond within 14 days of filing but for April H1B petitions, the volume of applications slows things down and it’s likely to be 4 weeks or more.  Otherwise, the process is likely to take several months. Expediting means you’ll know at the earliest opportunity whether (i) your petition has been accepted for processing, and (ii) approved, but it doesn’t increase your chances of being selected or allow you to begin working earlier than October 1.  It does, however, shorten the limbo period for the employer and the applicant, and like Mario Puzo’s Godfather, if the news is bad you may want to hear it as soon as possible.

Given the challenges, it’s surprising the number of people who don’t look at possible alternatives.

For students on an F-1 visa, Curricular Practical Training (CPT) may sometimes be an option, see: http://ow.ly/MB9mM

STEM (Science, Technology, Engineering and Mathematics) students may apply for a 17-month STEM extension in certain circumstances.

For USCIS Q&A on this topic, see: http://ow.ly/MB7eK

For Stem degree list, see: http://ow.ly/MB7t6

As discussed in more detail in an earlier blog, L-1 intra-company transfer visas, E-1/E-2 treaty trader/investor visas and the J-1 training visa are excellent categories for suitable cases. See: http://ow.ly/MBaIl

TN visas are available to Canadian and Mexican professionals under NAFTA, while E-3 visas allow Australian citizens to work as professionals in the U.S.

Although some graduates may be too early in their career to qualify for an O-1 visa for individuals with extraordinary ability or achievement in sciences, education, business, athletics or the arts, it’s worth reviewing the requirements. See: http://ow.ly/P8hHt

If you can secure a job offer from a cap-exempt organisation, the quota does not affect you.  The cap does not apply to institutions of higher education, non-profit research organizations, and government research organizations. These qualified institutions and their affiliates are exempt from the H-1B cap and can sponsor for an H-1B visa at any time of the year.


Let’s hope that when this Blog piece is being updated next year the quota will have been increased but in the meantime, it is what it is, with all its attendant risks. For those who don’t have any US visa alternatives, the H1B quota is like all other lotteries – if you’re not in, you can’t win.

OBA Law Office Limited t/a O'Brien And Associates • Registered in Ireland: 541466 • Registered Office: As Above

Share This