H-1B Limitations
Depending on the goals and preferences of alien workers and their sponsoring U.S. employers, the H-1B program has advantages and disadvantages. We’ve discussed some of the benefits of the H-1B program in another article. In this article, we’ll outline some of the drawbacks of H-1B visas.
It’s only temporary
H-1B status is approved initially for a period of up to three years. It can then be renewed for up to another three years. Thus, the usual duration of an H-1B worker's stay in the United States is a maximum of six years. After six years, H-1B beneficiaries must depart the U.S. for at least one year before qualifying again for H-1B status. However, in some cases, H-1Bs can be extended beyond the six-year period; for more detailed information on the certain circumstances to which these extensions apply, click here.
There aren’t that many, and they’re doled out fast
Congress has authorized a maximum number of H-1B visas to be issued per year. This “cap” or quota amounts to 65,000 H-1B visas annually, with an additional 20,000 visas reserved for alien workers with at least a master’s degree from a U.S. university. After U.S. Citizenship and Immigration Services (USCIS) issues this number any given year, no additional cap-subject H-1B petitions will be approved until the subsequent fiscal year.
In light of the high demand and low supply, there is almost always a rush to submit H-1B visa applications as soon as possible. The filing period for H-1Bs begins on April 1 (if said date doesn’t fall on a weekend), and over the past several years, USCIS has tended to receive significantly more petitions than it has available to award. Take fiscal year 2018, for example: USCIS received 199,000 petitions for the gross 85,000 cap-subject visas available.
Moreover, applications are selected for review by a random lottery, so if your perfect application isn’t selected, you are out of luck for the year (but you can try again next year). And even if you submit your petition on time and it is selected in the lottery, there’s no guarantee it will be approved during adjudication. See more about the H-1B visa cap here.
You can’t work until your petition is approved
Unless otherwise authorized, a prospective H-1B beneficiary can’t begin working until USCIS has approved his or her petition.
That said, if an alien worker already holds H-1B status with a U.S. employer and wishes to transfer to a new employer, then the worker can begin working for the new employer as soon as said employer files an H-1B petition with USCIS. In other words, the worker doesn’t have to wait for the new application to be approved. This allowance is known as the portability rule.
Spouses and children can’t work without authorization
With an H-1B visa, you can bring your spouse and children under the age of 21 with you to live in the United States. To join you in the U.S., your dependents have to be awarded an H-4 visa. Unfortunately, the H-4 visa does not itself allow dependents to work, although they can apply for an employment authorization from USCIS. The H-4 visa does, however, allow holders to attend school or university.
No automatic path to permanent residence
The H-1B visa does not automatically convert to lawful permanent residence. H-1B status is independent of the green card application. If you are looking to obtain a green card, see our page here.
You can be replaced by U.S. workers
U.S. employers are allowed to replace H-1B workers with qualified U.S. workers. In such an event, an H-1B employee has no discrimination claim since a U.S. employer has the statutory right, but not the obligation, to give job preference to U.S. workers over H-1B workers. However, once an H-1B employee is hired, he or she cannot be treated differently from similarly situated U.S. workers.
And if you’re fired, you lose your H-1B status
Your employer can terminate your employment (or you can quit) at any time for any, or for no, reason at all. As soon as your employment is terminated, you are technically out of H-1B status. When this occurs, USCIS may or may not overlook a gap in status. Some have reported a “grace period” of up to 10 days to change their status, but there is no set law or regulation establishing such a period, so it is best to use caution if you lose your status.
We can help
Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
Updated 04/26/2017