What Is the H-1B Visa?

An Interview with Immigration Attorneys Maggie Murphy and Amy Lighter

Joel Cohen (JC): Hello, and welcome to TalksOnLaw. I'm Joel Cohen. Today, we're talking all about H-1B visas and we're joined remotely by two immigration law experts Maggie Murphy and Amy Lighter of the law firm BAL. Amy, Maggie, welcome to TalksOnLaw.

Amy Lighter (AL): Hi, Joel. Glad to be here.

Maggie Murphy (MM): Thank you.

H-1B Eligibility

JC: Maggie, let's jump right in. What makes an H-1B visa unique? Let's start with a definition.

MM:  Well, an H-1B visa is probably one of the most popular visa categories in the U.S. for professional workers, and it's just that. It's a visa available to professional workers working in specialty occupations.

JC: And that begs the question, what makes an occupation special under the law?

MM: A specialty occupation is one that requires a bachelor's degree or higher. When a foreign student graduates from a U.S. university or comes here and has a foreign degree that qualifies or equates to a U.S. bachelor's degree, then they will qualify for an H-1B specialty occupation if that occupation requires a bachelor's degree or higher.

JC: Let's talk about the requirements. Are there multiple requirements that need to be met, or are these sort of separate silos or separate tiers that can qualify you for an  H-1B?

AL: There are sort of a couple of different sides to the requirements. So as Maggie was saying, one of the most important requirements is that it has to qualify as a specialty occupation. And to be a specialty occupation, as maggie said, the position has to require at least bachelor's level expertise in a particular field. And so, the second part of what we look at for H-1B specialty occupation is whether there's this match between the type of degree that someone has and the type of role they're going to be filling. So, for example, if you are looking at a computer programming type of a job, even if someone has a bachelor's degree in, say, English or dance, that's not going to be something that necessarily is going to prepare you for the type of duties you would be doing in a computer programming role.

JC: Let's run with that computer science example. And as a hypothetical, let's say I'm the candidate, and I have a degree in neurolinguistics but not in computer science. I taught myself computer science just online. Could I still qualify?

AL: Great question. Yes. The short answer is yes, you might still be able to qualify. What we look at then is whether you might have the equivalent of bachelor's level degree, and to do that, we look at how much experience you have working in the field. Now, just training yourself to be a computer programmer is probably not enough. Typically what the government wants to see is that you have worked in that type of field and in similar, acquiring similar skills, and the equivalence they look for is three years of work experience for every one year of university education.

JC: Very interesting the way the government seems to weigh college education so heavily, as a three to one return as compared to work experience.

AL: Yeah, talk about bang for your buck, right? It puts a whole new shine on the reason to get a university education.

JC: So you mentioned one possibility for qualifying, that's having a degree, a bachelor's degree at least. Another is training plus qualifications. Is there another way to qualify under the  H-1B?

MM: So certifications—so for example, if you have an English degree, let's say you have a four-year bachelor's degree in English, but you have three years in computer science in addition to that or a certification. There are education evaluation services that are in line with government standards and can review all of your credentials. So sometimes, we will just take all of an applicant's credentials and turn them over to an evaluation service to see, based on the government standards, what can we equate this to? Will it equate to a bachelor of science degree in computer science, taking the foundational degree of English which was awarded with additional training?

H-1B Visa Period

JC: So that's the qualification. Amy, can you let us know how long these visas are good? What's an H-1B visa duration?

AL: The initial grant of an H-1B visa is for three years, and then it can be renewed in a second three-year increment for a total of six years of stay.

H-1B Cap and Application Process

JC: All right, so how about the numbers? There's not an unlimited supply here. What's the cap, I suppose, and when and how do people apply?

MM: So there are 65,000 regular H-1B numbers allotted for each fiscal year. There's an additional 20,000 that are set aside for those individuals who have U.S. master's degrees or higher. It's called the master's cap. So we talked before about the requirements, you have to have a bachelor's degree. For the regular cap you just need a bachelor’s, the position has to require a bachelor's degree and the individual can have a degree from a foreign university or a U.S. university. For the master's cap allotment, you have to have a U.S. master's degree or higher, and in order to qualify for that cap, the degree has to have been awarded at the time of application.

AL: So with these 85,000 H-1Bs that are available each year, Congress allocates those visas, and then they become available on the first day of the government's fiscal year, which is October 1st. And actually, with any visa category, the earliest you can apply in advance for a visa typically is six months in advance. So that's why we have that April 1st date sort of set. It's the six months before October 1st when you can first submit the applications for that year's allotment of the H-1B visas. So each year, because there are so many more people, so much more demand for the  H-1B category than there are actual visas available, the government has established a lottery. And just to give you some numbers, typically in the last few years, we've seen at least twice as many applicants for those 85,000 slots and sometimes closer to three times as many applicants as there are slots. So it's a pretty substantial number. So they set up a registration process for this lottery. And so, to register, a company will enter the names of people who they potentially want to file H-1B visas for that October 1st start date.

JC: So is this kind of a rolling admissions? Do you get a benefit for applying early?

AL: Ah, great question. Not really. The time periods are pretty defined by the government. So there's a window in which the registration opens, and, for example, for fiscal year 2023, that window will be March 1st to March 18th. And that is the window in which companies are allowed to submit these registrations. If they fall outside of that, they miss their opportunity to file for that year's lottery.

JC: Wait, they only have 18 days to apply?

AL: That's right. So this is why we talk about in immigration world, we talk about cap season. It really is many months of preparation that a lot of companies put into thinking about who they're going to enter during that 18-day window.

JC: Once they've applied, is the application a lottery or do they go through and rank people and give visas to those who are most exceptional?

MM: It is a random lottery for right now. The USCIS and the Department of Labor has been chiming in. There are some regulations that are being proposed and have been proposed in the past that will provide a kind of a ranking order for applicants based on education, based on the wage that the position is paid, But for now, none of that exists. This is a completely random lottery. So the only exception to that is for the additional 20,000 that qualify under the master's cap. Their allotment is determined first. So the master's cap numbers are determined first, and then any remaining master’s cap applicants go into the regular lottery. So we used to call it two bites at the apple, that a master’s candidate first goes through the master’s cap draw and then is submitted into the regular cap draw.

JC: You've alluded to it but, Maggie, who is actually applying? It's not the individuals who want the visa, is it?

MM: Correct, it's the company, is the sponsoring employer. So the company registers with the government and then submits their list of applicants.

JC: And before we let you go, any parting wisdom for companies who are considering sponsoring  H-1B visas?

AL: Yeah, if you're a company that is considering sponsoring anyone for  H-1B, definitely start that planning process late in the calendar year. November, December, you should be thinking about who you want to submit and make sure that you have all that information gathered that's required before March 1st of each year, so that you don't miss the opportunity. Because once that ship has sailed, it has sailed for a full year.

JC: Maggie Murphy and Amy Lighter are immigration law attorneys at the firm BAL. Maggie, Amy thank you for the time.

MM: Thank you, always happy to talk about  H-1Bs.

AL: Thanks so much for having us.