Top 8 H-1B Visa Myths

The H-1B visa is a temporary non-immigrant visa administered by the USCIS. It authorizes U.S. employers to hire foreign professionals for specialty positions. The foreign professional can work and reside in the United States for a specific period of time. The spouse and children of the H-1B visa holder may receive H-4 visas, however, they are not approved to work under the H-4 visa. If the spouse and children wish to work in the United States, each person must obtain a separate working permit.

The H-1B is probably the most popular work visa available to applicants. However due to the many misconceptions, it is matched with challenges for both employees and employers. These are the top 7 myths that we have often heard from the clients.

H-1B Myths:

Myth #1 – H-1B Holders Can Apply to Any Job

Fact: The H-1B may only be applied to specific positions. The job must mandate a highly specialized professional within the fields of: Accounting, Architecture, the Arts, Banking, Biotechnology, Business, Computing, Coding, Engineering, Education, Finance, Healthcare, Marketing, Recruiting, Sales, Scientific Research, Social Science, Telecommunication, and Theology.

The applicant is required to hold a minimum of a bachelor’s degree or it’s foreign equivalent. This degree needs to be relevant to the position the applicant is offered.The position must also be approved by the Department of Labor through a Labor Condition Application.

Myth #2 – The H-1B visa is available at anytime

Fact: The filing period for the H-1B visa initiates on April 1st of every fiscal year. Applicants may continue filing until the USCIS obtains enough petitions to reach the 85,000 H-1B cap. Because the H-1B is in such high demand, this usually happens after one ween of the lottery being open. This gives you a very narrow window to apply.

If your petition is selected in the lottery and subsequently approved by the USCIS, you will not be able to start working as an H-1B employee until October 1st of the year that your petition was approved.

Myth #3 – If a foreign professional seeks employment in the United States, the H-1B visa is the only option.

Fact: Actually, there are many paths of employment for foreign professionals. There are available visas that are country-specific. For example, the E-3 visa is provided only to Australian workers while the TN visa is specialized towards Canadian and Mexican citizens.

The United States also provides the J-1 visa which can allow employers to hire foreign trainees or interns. These are only a few of the possible employment options. There is also the L-1 visa for multinational executives and managers as well as the E-1/E-2 visas for treaty traders and investors. For those foreign professionals who have extraordinary achievement, the O-1 visa may be more appropriate.

If you are interested in making the U.S. your permanent home through your employment, then an employment-based green card could be a viable step for you. Here are the main levels:

EB-1: this green card is for foreign nationals with extraordinary achievement, outstanding researchers and professors, and multinational executives and managers.

EB-2: this is for advanced degree holders, those with exceptional ability in their field, and those that qualify for a National Interest Waiver.

EB-3: for professionals (bachelors degree holders), skilled workers with two or more years of relevant experience, and “other workers” with fewer than two years of experience.

EB-4: this category is for special workers that fall into a limited list of occupations

EB-5: for foreign nationals who invest a substantial amount of money in a U.S. enterprise.

Myth #4 – the 85,000 cap is applicable to all H-1B petitioners.

Fact: The annual cap is only applied to new H-1B visas issued. There are also some applicants that may qualify under cap exemption:

• If the foreign national is already residing in the United States under H-1B status, they will be exempt. The applicant is also exempt if a new employer decides to file a petition on his/her behalf.
• If the U.S. employer is a government or nonprofit research organization, university, college, technical school, or non-profit affiliate of a post secondary school the applicant is exempt.
• If the H-1B applicant possess an advanced degree from a United States educational institution he/she will be exempt from the cap. Accepted advanced degrees are masters and beyond. A foreign equivalent will not qualify. However, the applicant has to be counted as one of the initial 20,000 advanced degree holders received by the USCIS.

Myth #5 – The H-1B application is the biggest challenge

Fact: Even if the H-1B visa petition is approved for a foreign national, the journey is far from over. The U.S. employer will then be subject to business audits by the USCIS and Department of Labor. A big mistake by employers is that they don’t match the employee’s payroll to visa authorization dates.

Some employers add workers to the payroll prior to authorized dates or after which can alarm auditors. Employers are advised to pay close attention to visa dates and maintain organization.

Myth #6 – The U.S. employer has a limit on how many H-1B workers he/she can sponsor.

Fact: A U.S. employer may hire as many H-1B workers as he/she wishes. Though, if an employer hires an over abundance of H-1B workers, which is calculated based on a percentage of the total workforce, the employer may be labeled “H-1B dependent.”

The H-1B dependent employer will then be subject to additional screening of recruitment processes. The H-1B dependent employer will also be required to mark “H-1B dependency” on every Labor Certification Application related to H-1B.

Myth #7 – The U.S. employer is required to conduct a recruiting process prior to the H-1B petition.

Fact: Unless a U.S. employer is labeled as H-1B Dependent or a “willful violator”, he/she will not be required to conduct a recruitment process for U.S. workers in advance. This is a myth that stumps almost every employer. Please understand that there are very different requirements between visas and it can be detrimental to confuse them.

This may be the result of a misunderstanding of the difference between the PERM Labor Certification and the Labor Condition Application (LCA).

PERM – this labor document is required for many of the employment-based green cards and does require your employer to conduct a recruiting campaign for your green card petition.

LCA – this document is required for the H-1B and does not require a recruitment process. It does, however, require your employer to determine the prevailing wage for your position and to attest the following things:

• That your employment will not be detrimental to other employees
• That the employer has notified the company/organization of your employment
• That the workers are not currently on strike

Myth #8 – Premium Processing is a good way to increase the chances of being selected in the H-1B lottery.

Fact: There is no way to increase your chances of being chosen in the annual H-1B cap aside from being entered into the advanced degree cap. This is because, if your petition is entered into this cap and is not selected, it will be re-entered into the regular cap for a second chance. 

However, premium processing has several myths surrounding it:

1. It does not increase your chances of being selected in the lottery
2. It does not increase your chances of having your petition approved
3. It does not allow you to start working for your employer before October 1st
4. It is not guaranteed each year. The USCIS reserves the right to suspend premium processing.

Because of the time constraints surrounding the H-1B visa, premium processing may or may not be helpful for your case. Your immigration lawyer will be able to help you make the right decision for your situation.