Law Blog

WORK VISAS: Specialty Occupations (H1B – Overview)

If you are like most people looking to come to the United States for work, you have probably already done a fair amount of research on the different employment-based visas that are available to foreigners.  This series of articles will focus on the most common work-related visas: H-1B, L-1, EB-3, E-2.

Each of these common work visas has pros and cons, and each is used in a specific way to achieve specific goals.  Let’s look first at the H-1B program.


Review basic info published by USCIS

First of all, if you have not yet reviewed the website maintained by the United States Citizenship and Immigration Services (USCIS), you should.  The homepage is here: .  And, the page discussing H-1B visas is here.

The purpose of this article is not to repeat the basic facts readily available on the government’s website.  Rather, this article assumes you already have educated yourself on the basics.

What we want to do here is provide you with insights that come from years of experience processing work visas and give some analysis you will not find on the government’s website.

I. Purpose of H-1B

First of all, realize this visa program was never intended specifically to help international workers come to the United States.  That thinking is backwards.  The purpose of the visa is to help American employers access specialty workers outside the country.  From the point of view of the USCIS, you are not the one asking for the visa–it’s the US employer who is making the petition.

If you are reading this article, you are probably the worker who wants to come to the US.  Nonetheless, if you want to improve your chances of making that happen through the H-1B visa, you need to understand the way the program was designed.

With this insight you can arrange your circumstances–and work with your attorney–to best fit the criteria.


II. Con: H-1B Application Period 

Let’s start with some bad news.  If you are in a big hurry to get resident status in the US, H-1B may not be a good solution for you.  Applications cannot even be submitted until April 1 of each year.  Also, you cannot apply more than 6 months in advance of the start date your employer proposes.

So, for example, if your employer wants you to start working in December, then you would not be eligible to submit your application until some time in June.  That’s not good.

For reasons we are about to discuss, you really want to coordinate with your prospective employer before-hand and make sure you have a propsed starting date no later than October.

Theoretically, you could apply any time after April 1 but, the reality is, the cap will likely have already been reached by then.


III.  Con: H-1B Quota

More bad news.  This year, the cap was reached in six (6) days.

It is possible you could go through all the trouble and expense of getting together a beautiful H-1B petition . . . which will not even be looked at by the USCIS.

Unfortunately, there are only 85,000 H-1B visas available this year.  In fact, 20,000 of those are only for workers who have a masters degree (or equivalent), so there are actually only 65,000 visas available for most people.  That cap will be reached rather quickly.

There are some exceptions for certain islanders.  If you are from Signapore, Guam, or Commonwealth of the Northern Mariana Islands, there is good news.  Also, if you are from Chile, you get a break.  Check the USCIS website here for details about the cap:  .

So, I know what you are thinking now.  If the USCIS closes the door as soon as the cap is reached, then you should be the first one in line to submit your application on April 1.  Well, that is probably not a bad idea, but there is another thing you should know.

More on Immigration

 IV. Pro: Random Selection

Once the quota for the year is exceeded, the USCIS will utilize a random selction process often referred to as the “lottery.”

They only do the lottery once, so you do want to be sure you have your petition in the stack before the cap is reached.  However, it is not exactly “first come, first serve.”

I suppose this is a “pro” inasmuch as you do not have to camp outside a USCIS office the night before April 1.  On the other hand, unfortunately, even if you are a very good candidate for an H-1B visa, you could be passed over as a matter of  bad luck.

Be aware, though, if your application is not randomly selected, it will be first in line for consideration for next year.  

Again, that is good news and bad news.    At least you did not entirely waste your time.  Your application will be considered . . . assuming the job offer still stands for next year and your circumstances do not change significantly.

However, it also means the applications not considered last year are going to be ahead of yours this year.  So, right, that means the cap is actually lower than it seems.  Sorry about that.

V. Conclusion

Let’s try to end this article on a positive note.  The H-1B program is hugely popular because it provides a cost-effective way to work legally in the United States.    You do not have to invest a lot of money setting up a business or buying into a venture.  All you need are certain in-demand skills and a job offer.  That is very attractive.

Next week, we will go into some of the characteristics of this visa.  Many of you will have more than one option for coming to the US.  The purpose of this article is to help you decide if the H-1B path is the right one for you.  Be sure to check out the upcoming articles on L-1, EB-3, and E-2 visas, so you can decide which is right for you.

~ Jeff Harrington