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H1B: History, now and the future


Is H1B Visa the Right Path for You?

It is a question that thousands of people around the world consider every year.

If you want to work in the U.S. as a highly-skilled temporary foreign worker under a speciality occupation, H1B is the most popular option.

Every year, on April 1, the H1B Lottery (‘HCap’) opens hundreds of thousands of applicants eagerly anticipating the selection of their petition, but the odds are not there.

Annually, only 65,000 H1B visas are granted to skilled workers who have only a foreign degree equivalent to a U.S. bachelor’s degree and a minimum of five years of relevant experience.

An additional 20,000 H1B visas are also granted to skilled workers with advanced Master’s degree or higher and a minimum of three years of relevant experience.

There is also a category of H1B Cap Exempt for non-profit organizations. Typically issued for medical professionals, educators and researchers. Think about MDs, R.N.s, university professors, etc. Before we get ahead of ourselves, let’s take a look back at how the H1B visa came to be. Let’s look at some important dates in the H1B history timeline and how these laws shaped the H1B visa.

The History of the H1B Visa

June 27, 1952

Section 101(15)(H)(1) of the Immigration and Nationality Act of 1952 (The McCarran-Walter Act) is where we see for the first time a reference to the term H1 and the birth of selective immigration for “skilled foreign workers”.

November 29, 1990

Immigration Act of 1990 replaced H-1 with two separate visas, designated as the H-1B for “speciality occupations”.

Establish a quota of 65,000 H1B visas for each fiscal year and require employers to pay a prevailing wage and other attestations via the Labor Condition Application.

Job-based immigration was also born via the Employment-Based (“E.B.”) categories, EB-1 through EB-5 with a 7% per country of origin quota and 140,000 Employment-Based Green Cards issued each fiscal year.

October 21, 1998

The American Competitiveness and Workforce Improvement Act (“ACWIA”) made several key changes to the H1B visa.

Increasing the H1B fiscal year quota to 115,000 for 1999 and 2000 and 107,500 for 2001, with the annual cap returning to 65,000 in 2002.

Implementing a fee-based model became one of the primary sources of revenue for Immigration and Naturalization Services (“INS”).

October 17, 2000

American Competitiveness in the 21st Century Act (“AC21”) resulted in several significant modifications to the H1B visa.

Increasing the fiscal quota allotment to 195,000 for 2001, 2002, and 2003 due to a significant backlog.

H1B visa holders working for non-profit organizations (research, education, government) became exempt from the HCap quota. Before AC21, all H1B visas were counted against the fiscal year HCap quota.

March 1, 2003

The Homeland Security Act of 2002 dismantled the INS. It separated the agency into three components within the Department of Homeland Security (“DHS”) that included the U.S. Citizenship and Immigration Services (“USCIS”).

USCIS is tasked with focusing exclusively on the administration of benefit applications, including H1B visas.

December 8, 2004

The Consolidated Appropriations Act, 2005 (“Omnibus Appropriations Act of 2005”) included the H-1B Visa Reform Act of 2004 in Title IV.

The Consolidated Appropriations Act proved to be the successor to many of the previous laws regarding H1B visas dating back to the Immigration Act of 1990 through AC21 in 2000.

Reducing the fiscal quota from 195,000 to 65,000 and creating an additional 20,000 for applicants who have earned a Master’s degree or higher from a U.S. based institution.

The HCap lottery timeline was also established, allowing for cases to be submitted beginning on March 8, 2005, and selections occurring the first week of April 2005 for the fiscal year 2006 that began on October 1, 2005.

Premium processing now became an option for an additional $1,000 processing fee, but it did come with a guaranteed return time. Over the past fifteen years, premium processing has proved to be one of the most profitable fees imposed by USCIS.

Please note that there have been a few other modifications to the H1B visa over the years through executive actions and several language changes to existing law. The H1B visa and the way it is regulated is in constant influx.

Working under an H1B visa in the U.S.

Let’s bring some clarity to what happens once you have been awarded an H1B visa.

Suppose you are currently working in the U.S. under another status, and you’ve been awarded an H1B visa in the HCap lottery. In that case, you will automatically change status to H1B beginning October 1 of the same year. Of course, that depends on your case approval, not just selected.

Once this happens and you are working under an H1B visa, the countdown begins.

What countdown am I referring to?

H1B visas are valid for six years and are typically issued in one to three-year increments.

The most attractive and secure option is to work as a permanent employee at the employer’s worksite.

There are other options, like working for a consulting or staffing firm as their full-time employee assigned to a client worksite, but it’s not very great either.

An even more complicated option, working as a third party consultant, albeit a full-time employee through what is referred to as Corp to Corp. Corp to Corp is the least attractive and most scrutinized option.

Regardless of the arrangement with your employer, each time you change jobs, change employers, change client worksite or any other material change to your occupation. New forms and documents have to be certified and filed with USCIS.

I’m not going to get into everything required here, but know IT IS A LOT OF WORK!

The Cycle Continues

This cycle continues until you reach your maximum stay.

So what happens if you have used all six years of your H1B visa validity?

Unfortunately, there are very few options. The most popular is that your employer sponsors your Perm Labor (Employment-Based Green Card) well in advance of reaching your maximum stay. It is the first step in the employment-based green card process.

Once your Perm Labor is certified, your employer can file an I-140 Immigrant Petition for Alien Worker on your behalf. Certifying the need for you to work permanently in the U.S.

This is considered the second step of the employment-based green card process and certifies the employment-based category you qualify for. This is generally in the EB1, EB2 or EB3 category.

The best part of having an approved I140 is that it allows your H1B visa to be extended indefinitely until your priority date becomes current. It allows you to work past the initial six years of validity of your H1B visa.

What is a Priority Date (“P.D.”)?

A Priority Date is a date that USCIS receives your I140 Immigrant Petition for Alien Worker.

Why is this Important?

Each month the Department of State posts a monthly Visa Bulletin with Priority Dates for Family, Employment-Based Preferences, and Diversity.

Remember the 7% cap on the country of origin we mentioned earlier become law in November 1990?

To demonstrate the point I’m making, let’s refer to the December 2020 Visa Bulletin where Final Action Dates for EB2 category is the most popular, where all countries were current except India (October 1, 2009) and China (May 1, 2016).

Final Action is the date for applicants whose priority date is before the final action date listed on the bulletin.

Once your Final Action date becomes current, you can file your I-485 Adjustment of Status (“AOS”). Once your AOS is received, you will typically receive your Green Card in nine to twelve months. This is the third and final step of the employment-based green card process.

As of Fiscal Year 2018, 73% of H1B petitions approved for initial and continuing employment were from India, and 11% were from China.

What’s the problem?

Both are victims of circumstance from the H1B pipeline. The country of origin approval percentages for H1B visas prove this much!

Having two countries possess 85% of the H1B visas issued annually creates a significant problem correlated to the number of employment-based green cards issued each year.

Therein lies the problem, a green card backlog of individuals mired in the employment-based preference categories of EB1, EB2, and EB3 are all from India and China living and working in the U.S. under H1B visa.

Taking a look at the I140 Approvals from 2009 to 2019 shows the data behind the backlog, but keep in mind some individuals have multiple I140 approvals.

1140 Approvals from 2009 to 2019:

Rest of World (“RoW”) Received: 1,130,100

Approved: 1,004,882

Approval Percentage: 88.9%

India Received: 484,632

Approved: 451,118

Approval Percentage: 93%

China Received: 134,570

Approved: 118,645

Approval Percentage: 88.1%

So back to the Immigration Act 1990. 140,000 EB Green Cards issued annually with a 7% country cap quota.

Suppose each year there is only a maximum of 9,800 EB Green Cards issued for China and India. In that case, the math for the total number of I140 approvals over the last ten years doesn’t equate to the 98,000 EB Green Cards that could have possibly been issued for each country during that same period.

What’s your point?

Why have I gone into the details on the issues surrounding Employment-Based Preferences for Green Cards when I’m supposed to be talking about the H1B visa being the right path for you?

The H1B visa and Employment-Based Preferences go hand in hand if you want to continue living and working in the U.S. past the initial six years of your time on H1B.

I want you to understand that you will be getting in a very long line, a line so long that includes over 600,000 people and counting with no end in sight.

But by doing so, you will be allowed to continue to live and work in the U.S. as a temporary foreign worker on an H1B visa until your priority date becomes current.

Is there another option?

Yes, there is, but you have to keep in mind that you are temporary. You can work under your H1B, make your money, leave the U.S. financially more secure and with several years of U.S. experience on your resume. The same can be said for OPT EAD/OPT EAD STEM. The worst-case scenario for you is that you live and work in the U.S. for one to three years, have the potential to make great money, leave with professional work experience on your resume and still have an international Masters Degree with your name on it.

One last thought!

If you’re still reading this, I want to leave you with one last thought. The choice is yours, but understand that choosing the H1B visa life is choosing to do something that is not easy. The H1B visa life comes with uncertainty, scrutiny, discrimination, anxiety, and fear. However, it isn’t all bad. The positive side is that you will earn top dollar and gain invaluable experience, with the opportunity to be innovative while being exposed to some of the best and brightest minds in the world.

So is the H1B visa the right path for you? The answer is easy! The choice is yours!

The H1B Guy

🗣️ Robert has established himself as a thought leader on immigration. He has implemented multiple programs surrounding work authorization, third party process, and international recruitment strategies during his 15-year career in the private sector. Launching TheH1BGuy.com in June 2020, Robert consults with employers and employees to help maintain compliance and implement automated processes surrounding employment-based preferences. He posts weekly content to his Blog and YouTube channel, where he covers News, Education, Advice and Reform discussions on the H1B Visa and other immigration benefits.

Sources:

https://www.uscis.gov/sites/default/files/document/reports/h-1b-petitions-by-gender-country-of-birth-fy2018.pdf

https://www.uscis.gov/sites/default/files/document/data/I140_by_class_country_FY09_19.pdf

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-december-2020.html