Understanding the H-1B Visa Category

An H-1B nonimmigrant petition allows a U.S. employer to sponsor an educated foreign worker in a professional position related to their academic field of study. H-1B workers are employed across America by large and small organizations in a wide range of industries.

More than two thirds of H-1B workers are in a computer-related occupation, and about two thirds have a graduate degree above a bachelor’s. Over 70% of H-1B workers are male.

H-1B workers hail from around the world, but the majority were born in India or China. Three quarters of H-1B petitions are for beneficiaries born in India. One reason that so many H-1B workers are born in India is that people born in India wait longer than any other population for employment-based green cards. Thus, H-1B workers from India who remain in the U.S. until they become lawful permanent residents must maintain H-1B status for many years longer than H-1B workers from anywhere else.

H-1B Visa Cap and Employer Requirements

The H-1B visa program has an annual cap of 65,000 new visas, with an additional 20,000 reserved for beneficiaries holding a master's degree or higher from a U.S. institution of higher education. Additional H-1B petitions are approved for organizations that are exempt from the annual cap, such as universities and certain non-profit organizations.

Once someone has been granted H-1B status, that person may extend their H-1B status for a total of six years, or longer if they hit certain milestones in an employer-sponsored green card process. The current total number of H-1B workers in the United States is approximately 600,000.

Changing Jobs Under the H-1B Visa

H-1B workers require an employer to petition on their behalf. For an H-1B worker to change jobs, the new sponsoring employer must file a new H-1B petition to USCIS prior to the transfer. While many H-1B workers prefer to wait for petition approval before starting their new job, it is permissible for them to start as soon as the H-1B petition is filed, even while it is still pending.

Transferring an H-1B visa does not subject the employer or H-1B worker to the visa cap. This means employers hiring a transferring H-1B worker do not need to worry about the H-1B cap lottery. Thus, hiring an existing H-1B worker is much more predictable than seeking to hire someone who is seeking their first H-1B petition, especially in recent years as the odds of selection in the H-1B lottery have become increasingly remote.

To change employers while in H-1B status, it is essential that the beneficiary actually hold H-1B status. It is not possible to change H-1B employers prior to the start date of the first H-1B petition. It is also not possible to change H-1B employers before activating the H-1B petition, it is issued with consular notification rather than with an attached I-94 record changing or extending the beneficiary’s status.

Potential Complications When Changing Jobs on an H-1B Visa

Though an H-1B worker can begin working for their new employer as soon as their “change of employer” H-1B petition is filed, some prefer the certainty of a petition approval before starting a new job. If the H-1B petition is denied, the H-1B worker risks falling out of status if they cannot remain in or return to their prior H-1B job.

Employers hiring a transferring H-1B worker must be vigilant about the hire’s immigration needs. If the H-1B worker was first granted a cap-exempt H-1B petition, that worker can only transfer to another cap-exempt H-1B employer, such as a university or certain nonprofit organizations.

Employers must also pay attention to how much time the H-1B worker has left before exhausting their six years of H-1B status eligibility. If there is insufficient time left, it may be impossible to progress in a green card process quickly enough to avoid the H-1B worker losing work authorization before qualifying for a post-six year extension of H-1B status.

H-1B workers must be cognizant of their family’s status. Some employers will file to extend the family’s H-4 status along with the H-1B worker’s petition, but others will expect the H-1B worker to handle that independently. Filing a “change of employer” H-1B petition will extend the H-1B worker’s status and make it have a later expiration than the dependent family members’ H-4 status expiration, if their status is not also extended.

Transferring from an F-1 Visa to an H-1B Visa

International students who enter the U.S. in F-1 status and graduate are often eligible for a year of temporary work authorization known as OPT while they remain in F-1 student status. Those with degrees in qualifying STEM fields can often add two more years of STEM OPT work authorization for a total of three years. Those with a willing employer would be wise to enter the H-1B lottery every year until they are selected, because the odds of selection are slim.

If you require further information about H-1B eligibility or the application process, schedule a consultation with Locke Immigration Law.

Frequently Asked Questions

1. What is an H-1B visa? The H-1B visa is a nonimmigrant visa that allows U.S. employers to sponsor highly educated foreign professionals for specialty occupations. It involves multiple federal government agencies, including the Department of Labor (which certifies the Labor Condition Application), USCIS (which adjudicates the I-129 nonimmigrant petition, which can be approved for consular notification or can includes a change or extension of H-1B status), and the Department of State (which issues the visa and places it in the H-1B worker’s passport).
2. What are the annual caps for H-1B visas? The H-1B visa program has an annual cap of 65,000 new visas, with an additional 20,000 reserved for beneficiaries holding a master's degree or higher from a U.S. institution of higher education. The annual cap does not include petitions granted for cap-exempt organizations, nor new petition filings for existing H-1B workers.
3. Can I change jobs if I have an H-1B visa? Yes, you can change jobs while maintaining H-1B status, provided the new employer files a new “change of employer” petition prior to the new job commencing. Material changes with the same employer also trigger the need for the sponsoring employer to file a new H-1B petition to USCIS.
4. What are the benefits of transferring an H-1B visa? Transferring an H-1B visa does not subject the H-1B worker to a new annual cap, making current H-1B workers more attractive candidates than those who are seeking their first H-1B visa.
5. What can go wrong when changing jobs on an H-1B visa? If an H-1B “change of employer” petition is denied, the employee risks falling out of status.
6. How can I transfer from an F-1 visa to an H-1B visa? F-1 international students can become H-1B workers, but they must first be selected in the annual cap lottery (unless they are hired by a cap-exempt petitioner such as a university or certain nonprofit organizations).
7. How can an immigration attorney help with the H-1B visa process? The H-1B visa is highly regulated and triggers significant legal compliance obligations for the employer. It is essential that a sponsoring employer work with qualified immigration counsel that represents its best interests. It is not permissible for an H-1B worker to pay for their own H-1B petition, and it is the employer - not the sponsored worker- who signs the H-1B petition forms. An immigration attorney can help sponsoring employers avoid common pitfalls that lead to wasted application fees, unnecessary delays, and tarnished relationships with highly qualified talent when filing H-1B petitions.
8. How long can someone be in H-1B status? The initial duration of an H-1B petition is up to three years, and H-1B status may be extended for up to a maximum of six years. Extensions beyond six years are available to H-1B workers who have met certain milestones in the green card process but have not yet become lawful permanent residents.
9. Is the process of transferring an H-1B visa different from applying for H-1B status for the first time? The process of transferring an H-1B visa is similar to the process for applying for a first-time H-1B petition, but transferring H-1B workers are not subject to the visa cap, which removes the uncertainty of the H-1B cap lottery.
10. Can I work for multiple employers while on an H-1B visa? Yes, you can work for multiple employers while you hold H-1B status, but each employer must file a separate H-1B petition on your behalf.
11. Can I start working for a new employer immediately after my H-1B transfer petition is filed? Yes, an H-1B worker who is changing employers may begin working for the new employer as soon as the employer files their H-1B “change of employer” petition (and before the H-1B worker’s period of authorized stay expires). The H-1B worker’s unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document for their I-9 with the new employer.
12. Can I extend my H-1B visa beyond six years? You may be eligible to extend your H-1B visa beyond six years if you’ve hit certain milestones in your green card process, including having a pending labor certification or I-140 immigrant petition filed more than 365 days prior, or having an approved I-140 petition while your category is backlogged on the Visa Bulletin. Even if you don’t have a green card process underway, you can also “recapture” days spent outside the U.S. since you first held H-1B status and tack them onto the end of your H-1B time with a petition extension.
13. What happens if my H-1B transfer petition is denied? If your H-1B transfer petition is denied, you may fall out of status, putting yourself and your family at risk of removal proceedings. It is important to consult with an immigration attorney to understand your options in this situation.
14. Do I need to obtain a new H-1B visa after transferring my H-1B visa to a new employer? If you have a valid H-1B visa in your passport, you can keep using it even after you change to a new H-1B employer.
15. Can my spouse and children accompany me while I am on an H-1B visa? Yes, your spouse and unmarried children under the age of 21 can live in the United States in H-4 status which you hold H-1B status.. If you marry while you are already in H-1B status, your new spouse can apply for an H-4 visa and join you immediately. If your child turns 21 while holding H-4 status, your child will need to change to another status (such as F-1 student) or depart the U.S.